230 Pa. 597 | Pa. | 1911
Opinion by
The plaintiff is a newspaper reporter, and on the afternoon of June 21, 1906, went to the Philadelphia Country
It is averred in the statement, as the cause of action, that it was the duty of the defendant as the owner and operator of the telephone pay station at the Country Club to have the same properly equipped and protected so as to prevent injury to persons using it, and that “the defendant neglected to properly equip and operate its pay-station at the said Philadelphia Country Club, and so negligently maintained and operated the same, that on the twenty-first day of June, 1906, the plaintiff while using the telephone at the public pay-station above referred to, ... . received a severe electrical shock rendering him unconscious,” etc.
There were two witnesses called by the plaintiff, himself and Dr. Francis D. Patterson. In describing the accident the plaintiff testified that he went to the telephone booth, took the receiver off the hook and asked for his number, “and instantly there was a heavy shock. I saw a flash of electricity and bolt of fire in front of my face, and the next thing I remembered is the next afternoon my daughter sitting by my bedside in the Howard Hospital. . . . That was the first time I had regained my consciousness.” As to the condition of the weather on the day of the accident, the witness says it looked threatening that afternoon and there was rumbling of thunder all the latter part of the afternoon, that he was
Dr. Patterson testified that he was at the clubhouse that afternoon, and that it started to rain very hard early in the afternoon and there were distant flashes of lightning and thunder between half past five and six o’clock. He says that later he was sitting at dinner on a covered' veranda when a heavy storm came up, “I judge it was-about quarter after or twenty minutes after eight, suddenly there was a frightful, blinding flash of lightning— so much so that the people sitting at the same table with me all jumped up under the impression that the clubhouse had been struck, and just as we started to go indoors, somebody came running out and said a man had been struck by lightning, and I went in right away and found Mr. Rocap lying on the floor and I then examined him and found that his condition was apparently very serious. . . . He was exactly like a man who had suffered concussion of the brain. . . . He was lying some twenty or twenty-five, feet from the telephone booth just where he had fallen. . . . There was a blinding flash of-light and the people at the tables, everybody on this veranda, forty or fifty people, jumped up and thought the clubhouse was struck. Q. And that was followed by a clap of thunder? A. Followed instantly — there didn’t seem to be an appreciable space between the light and the thunder. Q. Were these such marks as would indicate that any of the current passed through him? A. The one on the front of the forehead was undoubtedly a bruise where he fell. What the one back of the ear was I am not prepared to state. It might have been an electric burn. It was due to a suffusion of blood. It might have come from a very severe bruise when he fell; I am not prepared to say that.”
The testimony of the plaintiff, it will be observed, was confined to showing the accident, the condition of the
The official records of the weather bureau at Philadelphia and the testimony of the observer in charge of the bureau show that there was a thunderstorm at Philadelphia during the evening of June 21, 1906, from 8:10 to 10:15 o’clock; and other testimony disclosed the fact that the storm was very severe and had put many telephones out of service.
This, like any other case, must be considered and decided on the facts admitted or proved in the trial court. We have referred to the material evidence produced by both parties. The credibility of the witnesses was not impugned and the evidence was entirely uncontroverted. The facts, therefore, are not in dispute. We are all of opinion that the learned trial judge erred in not giving binding instructions in favor of the defendant, and subsequently in not entering judgment for the defendant not" withstanding the verdict.
The maxim res ipsa loquitur does "not apply to the facts of the case as disclosed by the. plaintiff’s evidence. We are not required to determine whether the maxim would have applied had the plaintiff’s evidence concluded by showing simply the accident, that he had approached the telephone, took the receiver and instantly received the electric shock which caused his injuries. It might be that as the telephone line and the electric current used in operating it were in the exclusive control and management of the defendant company and the result was so unusual and out of the ordinary in operating telephones that a fair inference might be drawn that the shock communicated to the plaintiff was caused by the defendant’s negligent operation or management of its line. It possibly could have been inferred under these circumstances, though we do not decide, that the telephonic wire had come in contact with a highly charged wire by reason of the negligent construction or maintenance of the former wire and thereby produced the electrical discharge that shocked the plaintiff. The proof of the accident and the consequent injury without more might have made out a prima facie case and sent it to a jury. But the plaintiff went beyond the mere proof of the accident, and showed the cause
It appearing by the plaintiff’s testimony that his injuries resulted from the act of God, the maxim has no application, and a presumption of negligence does not arise. Actus Dei nemini facit injuriam. The burden was, therefore, on the plaintiff to produce affirmative proof of negligence which concurred with the act and effectively contributed to the accident. To create a liability on the part of the defendant it must have required the combined effect of the act of God and the concurring negligence to produce the injury: Baltimore & Ohio Railroad Co. v. School District, 96 Pa. 65; and if the act was so overwhelming as of its own force to produce the injury independently of the negligence shown, the defendant cannot be held responsible: Helbling v. Allegheny Cemetery Co., 201 Pa. 171.
We have discussed the evidence introduced by the plaintiff and its effect on the liability of the defendant. There was no attempt by the plaintiff to show that there was any defect whatever in the telephone, and he relied solely on the proof of the accident and his injuries to show that the telephone was not properly constructed, equipped or protected. He, therefore, failed to meet the
It is contended by the plaintiff that the failure of the defendant company to place a warning on the telephone against its use during electrical storms was evidence to submit to the jury of the defendant’s negligence in the management and operation of the telephone. We do not regard this contention as tenable. It overlooks the well-settled and oft-repeated rule in this state that the test of negligence in methods, machinery and appliances is the ordinary usage of the business. One cannot be convicted of negligence if he employ in his business the methods and appliances in general use by those engaged in a like business; on the other hand, if he fail to use such methods and appliances and an injury results therefrom, he may be required to convince a jury that his methods and appliances were of equal or superior merit to those in general use. If a notice or warning not to use the telephone during a thunderstorm can be regarded as an appliance or equipment, it does not appear, and the plaintiff does not attempt to show, that such a notice has ever been placed by
The doctrine of the electric light and power cases cited by the plaintiff is not applicable to the facts of the present case. In those cases it appeared the injury was caused by an electric current which was or should have been under the control of the defendant, and the exercise of proper care by him would have prevented the accident. Here, the undisputed testimony shows that the plaintiff was injured by a current of atmospheric electricity or lightning against which there is no absolute protection but against which the defendant company tried to protect the plaintiff and others using the telephone by placing on it the best and most efficient protection device then known. The distinction between the two classes of cases is, we think, apparent, and certainly very important. The defendant company neglected no duty which the law imposed, and, hence, it is not responsible for the injury which befell the plaintiff.
The facts of this case are not in dispute and they fail to show any negligence on the part of the defendant company which caused the plaintiff’s injuries. The learned trial judge should, therefore, have directed a verdict for
The assignment of error is sustained and the judgment is reversed, and judgment is now entered for the defendant non obstante veredicto.