Philadelphia City Passenger Railway Co. v. Henrice

92 Pa. 431 | Pa. | 1880

Mr. Justice Paxson

delivered the opinion of the court, March 1st 1880.

The first, second and fourth assignments relate to the same subject, and may be considered together. The first and second allege error in the admission of evidence on behalf of the plaintiff below to prove the hours of service required by the defendant company of its drivers and conductors, whilst the fourth relates to the instructions of the court upon said evidence.

The fact to be proved was, whether the driver of car No. 127 had been guilty of negligence upon the occasion in question in consequence of which the child, Charles Ilenrice, had been run over and injured. Was the evidence objected to of such a character as tended to prove this fact ? It "was undoubtedly competent to prove the condition of the driver at the time the accident occurred; that he was intoxicated, or absent, or for any other reason incompetent to attend to his duties: Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339; Mansfield Coal & Coke Co. v. McEnery, 10 Norris 185. These were specific matters which might have been proved; but how the fact that other drivers and other conductors were allowed only a certain number of hours for sleep and rest could affect the question of this particular driver upon this particular occasion is not apparent. It is easy to see, however, how. such evidence might seriously influence the jury and increase the damages. When a fact is established in a cause by evidence, the jury may properly be allowed to draw therefrom such inferences as are logically deducible from it. Thus if it be shown that the driver was asleep or intoxicated at the time of the accident, a presumption of negligence would properly arise. But the fact from which such inference is to be drawn must first be established. It will not do to presume that he was in the condition referred to from some remote fact in no way connected with the case, and upon this presumption base the additional presumption of his negligence. This would be to found a presumption upon a presumption, which is never allowed. A presumption should always be based upon a fact, and should be a reasonable and natural deduction from such fact. The true rule was correctly stated by Mr. Justice Thompson, in Douglass v. Mitchell's Exrs., 11 Casey 443 : “ That as proof of a fact, the law permits inferences from other facts, but does not allow presumptions of fact from presumptions. A fact being established, other facts may be, and often are ascertained by just inferences. Not so with a mere presumption of a fact; no presumption can with safety be drawn from a presumption : there being no fixed or ascertained fact from which an inference of fact might be drawn, none is drawn.” What has been said applies to the charge of the court embraced in the fourth assignment, as well as to the offers of evidence. There was no evidence that the driver of car No. 127 was in any way rendered incompetent to perform his duties in a proper and careful manner by reason of the severity of his labors or the loss of rest and sleep. In the absence of such evidence we have but a mere presumption, and upon this it was not competent to construct the further presumption of his negligence.

There was also error in affirming the plaintiff’s fourth point. (See third assignment.) The point is framed upon the assumption that the driver saw the child approaching the car. There is no evidence upon this point save that of the driver himself, and he says he did not see it until after the injury. It is possible he might have seen it had he been on the alert — some of the witnesses say so substantially — but the point is not so framed. But if he had seen the child “in the street approaching the car, and in such close proximity that the child might reach the track before the car passed,” it was still error to instruct the jury, as a matter of law, that it was negligence for the driver not to stop the car. The standard of duty in such a case was a shifting one, and for the jury, not a fixed rule, the same under all circumstances, and, therefore, for the court. It did not follow that the child would reach the car, and the point was framed upon the mere possibility of its doing so. From the driver’s standpoint, assuming him to have seen the child, it may have appeared extremely improbable. It was a question for the jury to determine whether, under all the circumstances, it was his duty to stop. It was error to rule it as a matter of law.

Judgment reversed, and a venire facias de novo awarded.