| Pa. | May 17, 1873
The opinion of the court was delivered, May 17th 1873, by
When the plaintiffs below rested their case the defendants moved for a nonsuit. This was refused by the court; that refusal is now assigned for error.
If the defendant had declined to give any testimony we would consider the sufficiency of the evidence then given. As, however, much evidence was afterwards introduced, the whole should be considered together.
The action was brought by the defendants in error to recover damages for the burning of a block of buildings. The fire was alleged to have been caused by sparks from the stack of the railway company’s locomotive “ Lancaster.” The buildings were situated within a few feet of the railroad embankment, and near the water-stand, where the locomotive was supplied with water.
The evidence as to whether the sparks caused the fire, was properly submitted to the jury, who found they did.
The defendants requested the court to charge the jury, that there was no testimony which would justify them in finding the defendant guilty of any negligence. This the court refused to do, but left it to them to determine from the whole testimony, whether the defendant, by his exclusive negligence, caused the fire.
For this refusal and charge the principal errors are assigned.
Negligence is the gist of this action. To recover, the plaintiff must have established the defendant’s exclusive negligence.
Was there such evidence of this fact, that it should have been submitted to the jury ?
It was formerly held, that where there was a scintilla of evidence of a material fact, the question should be submitted to the jury.
This doctrine, however, has been overruled, both in England and by this court.
In Wheelan v. Hardisty, 8 El. & Bl. 262, it is said, that an end has been put to what has been treated as the rule, that a case must go to the jury, if there was what has been termed a scintilla of evidence. The question is, whether the proof is such, that the jury could reasonably come to the conclusion that the issue was proved.
Toomey v. Railway Co., 3 C. B. N. S. 146, was a case for negligence. It was there held, that it was not enough to say there was some evidence! A scintilla of evidence, or a mere surmise,
In Ryder v. Wombwell, 4 Law Rep. Ex. 32, it was said by Willes, J., that it is now settled that the question for the judge is not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is not, the judge ought to withdraw the question from the jury, and direct a nonsuit, if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant.
The case of Ryder v. Wombwell is cited with approbation by the court, in Howard Express Co. v. Wile, 14 P. F. Smith 201. There the rule is more distinctly and clearly stated by Justice Sharswood, to be, that where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof; but in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Whenever this is so, they have the right, and it is their duty, to withhold it from the jury.
The uneontradicted evidence in this case, showed that the sparkarrester was perfect in mechanical construction, and in efficient condition at the time of the fire; the learned judge, upon disposing of the rule for a new trial, states these facts to have been admitted. He ivould have set aside the verdict upon the ground that it was against the weight of the evidence, had he not been constrained by the judgment of his colleagues, his associates not learned in the law.
Sitting as a court of last resort, we cannot reverse merely because we may think the verdict was against the weight of evidence. If any evidence was given, which, alone and uneontradicted, would justify an inference that the injury was caused by the exclusive negligence of the defendant below, we will not disturb it. If, upon the other hand, there was no such evidence, then the court erred in not affirming the point submitted by the defendant.
The rule is well settled, that a party is not answerable in damages for the reasonable exercise of a right, unless upon proof of negligence, unskilfulness or malice. In this case there is no allegation of malice. The proof is clear, that there was no negligence or unskilfulness in the construction of the locomotive or spark-arrester.
John E. Wootten testified that he was in charge of the machinery of the road. Was a machinist; had paid considerable attention to spark-arresters; had made that one of his studies; considered himself an expert upon that subject; had 300 engines under his charge,
William Lorenz testified that he had been for twenty years a civil engineer; is now the chief engineer of the company; was formerly engineer in locomotive department; is familiar with spark-arresters on the road; from knowledge thus derived, and interest taken therein, considers himself an expert; knows the spark-arresters used on the coal-cars at the time of the fire, and knows of no better kind.
It thus appears that the greatest mechanical skill, and the most progressive mechanical science, have united in creating the most perfect machinery adapted to this purpose.
The proof is equally clear that it was in good condition.
Wm. Brown testified that he was the engineer on the Lancaster at the time of the fire. The spark-arrester was in good condition, nothing the matter with it; the day before it had been examined; he had examined it the day after. Re-examined it to see if it had caused the fire; found it all right. Three other witnesses, whose duties were to examine the spark-arresters daily, testify to the good order and condition of this one. It was not quite new, but just as good as new.
It was claimed, however, that an undue amount of coal had been put in the fire-box of the locomotive, and that the moving backwards and forwards while at the water-station, was negligence. A careful examination of the whole evidence fails to show us any negligence in either of these acts. It is therefore just that this company should have the benefit of the principle, that no person, whether natural or artificial, is answerable in damages for the reasonable exercise of a right, accompanied with a cautious regard to the rights of others: Railroad Co. v. Yeiser, 8 Barr 366.
To recover, the plaintiff must have established the negligence of the defendant. Yet he has been allowed to recover in the face of the most overwhelming proof that there was no negligence. The learned judge therefore erred in not charging the jury as requested, and the first assignment of error is sustained.
Judgment reversed, and a venire facias de novo awarded.