46 Pa. Super. 243 | Pa. Super. Ct. | 1911
Opinion by
On March 28, 1907, the plaintiff was employed by a city contractor engaged in repairing the abutments of a city bridge at Sixth street and Allegheny avenue, in the city of Philadelphia. The right of way of the defendant runs approximately at right angles under the bridge at that point and the abutments of the bridge are upon the defendant’s right of way. The track nearest the abutment, upon which the plaintiff was working, was, as he testified, sixteen or eighteen feet from the face of the abutment; another witness made this distance about fifteen
The first witness who undertook to describe the accident was the plaintiff himself. He distinctly testifies that he did not see the engine coming and that after he was knocked down and got up he saw the poker lying on the ground and was told that he was struck by that instrument. There is absolutely nothing in this witness’s testimony tending to show where the poker came from. He distinctly says he was hit by something and did not see what it was or where it came from until after. He says he was working under the bridge and the railroad track ran under the bridge, the latter carrying the street over the railroad, and that he was standing between the north railroad track and the north wall of the bridge. The next witness who attempts to describe the accident is Francesco Mastroudono who says that he was working with the plaintiff; that he saw the machine (meaning the en
The next witness who was present at the accident was Marteo Germanioni. He testifies that he saw Salerno, plaintiff, fall down to the ground. Then further along he says: “Q. Did you see Mr. Salerno fall to the ground? A. No, sir; I saw him after that. Q. Did you see any poker near him after he fell? A. I see the poker — after I turned around back. I seen the poker fall across back of Salerno.” In the cross-examination of this witness he distinctly says: “Q. You didn’t see the accident? A. No; I saw after, because Salerno was lying on the ground.” Again he says: “Q. Did you see the poker on the ground before he fell? A. No; I never saw it before he fell. I saw the poker on the ground. Q. Are you sure whether or not the poker was there before he fell? A. No; the poker fell from the engine. Q. Did you see the engine come up? A. I saw the noise of the engine passing on the track. I could not turn around every time an engine passed because I had to do the work. It would throw me behind all the time to watch the engine. I have to work.” Although this witness said “The poker fell from the engine” yet his testimony is perfectly clear that he did not see the poker till it lay on the ground. He says, “I never saw it before it fell,” so that it is clear that he was only giving an opinion when he said the poker fell from the epgine.
The next witness, and the only other one who was present at the accident, was Pasquale Scarito. He testified
The learned court below submitted the case to the jury and there was a verdict and final judgment in favor of the plaintiff, and defendant appealed. The defendant’s counsel argues three propositions in his effort to convict the court below of error: (a) Is the negligence of the defendant to be presumed by mere proof of the happening of the accident? (b) that the plaintiff was a trespasser and therefore he cannot recover; (c) is the plaintiff a coemployee with the crew of the engine under the Act of April 4, 1868, P. L. 58?
We will first dispose of propositions (b) and (c). In our opinion there is not sufficient evidence to warrant a discussion and citation of authorities as to these propositions. The testimony clearly shows that the plaintiff was in the employ of a contractor doing work for the
This leaves a single question for decision, Was there sufficient evidence of the negligence of the defendant’s ■employees which caused the injury to plaintiff? We say this is the only question remaining because there is an utter lack of evidence of any contributory negligence on the part of the plaintiff. Is this case within the maxim “res ipsa loquitur?” In our opinion the conceded facts as proved by the plaintiff himself fail to bring the case within that rule. It is impossible, under the testimony, to determine where the poker came from. That it fell or was thrown from some point and injured the plaintiff is sustained by an abundance of testimony, but no witness testified that he saw the poker either fall or being thrown from the engine. Remembering that the plaintiff stood ten feet from the nearest rail of the track at the time of the accident it seems very certain that if the poker had simply fallen from the engine it would not have touched the plaintiff. He was standing on a level practically with the track on which the engine was running, and it is very apparent that if the poker had rolled or slipped off the engine it would naturally have fallen nearer the track and several feet from, where the plaintiff stood. It, therefore,.seems certain that the poker was either dropped through the floor of the bridge or it was pitched or thrown from the engine or from some other
The learned counsel for appellee have made an able argument and have supported it with a large number of authorities, but it is all based on the assumed fact that there was testimony that the poker was seen to fall from the engine. But the view we have already expressed on that subject relieves us from.the necessity of discussing the cases cited. The appellee’s whole argument is based on the sentence found in the testimony of Pasquale Scarito, “A. No, the poker fell from the engine.” But as we have seen this witness did not mean to testify and did not testify that he saw the poker fall from the engine. Taking the whole of his testimony together it becomes absolutely clear that he did not see the poker come from the engine but that he gave his opinion on that subject. Conceding arguendo that there is sufficient testimony to warrant the jury in finding that the engine belonged to the defendant company and that the crew thereon were employees of that company, we still feel bound to hold that the learned court erred in submitting the case to the jury and in refusing judgment for the defendant non obstante veredicto. The court was asked to instruct the jury that, “Under all the evidence in this case your verdict must be for the defendant.” This point was refused and the case sent to the jury, and after verdict in favor of plaintiff, defendant’s counsel regularly moved for judgment non obstante veredicto, and when the court refused that motion and granted judgment on the verdict, defendant’s counsel excepted and the court sealed a bill.
Of course the burden was upon the plaintiff to prove
“The maxim res ipsa loquitur is in itself the expression of an exception to the general rule that negligence is not to be inferred but to be proved affirmatively. The ordinary application of the maxim is limited to cases of an absolute duty, or an obligation practically amounting to that of an insurer. Cases not coming under one or both of these heads must be those in which the circumstances are free from dispute and show, not only that they were under the exclusive control of the defendant, but that in the ordinary course of experience, no such result follows as that complained of.”
The next case we cite is Joyce v. Black, 226 Pa. 408. In it Mr. Justice Brown, speaking for the court, said: “On the evening of June 8,1906, the appellant was sitting on a chair on the pavement in front of a building No. 602, Liberty avenue, Pittsburg. While sitting close to this building and near the adjoining one — No. 600 — an ornamental bracket from that building fell and struck him, and this suit is for the recovery of damages for the injuries sustained, due, as is alleged, to the failure of the appellee to have the bracket properly and safely fastened to the building. The learned trial judge properly refused to sustain the contention that the fall of the bracket was in itself evidence of negligence.” We also cite the very
Appellee’s counsel cite many cases, a number of them from other states, but they seem to rely with much confidence on Booth v. Dorsey, 208 Pa. 276, where the plaintiff was injured by being struck by a brick which descended from an upper floor of a building through which he was passing. . Who threw or dropped the brick or how it came to fall could not be shown. It was, however, proved that the-defendant’s employees were engaged in throwing bricks upon a platform from which, if carelessly or too forcibly thrown, the bricks might roll off and fall. We think two sentences of the opinion by the Supreme Court clearly show the distinction between that case and the present one. There it was said: “Other evidence tended to show that there were no other persons in the part of the building from which the brick had come. In this way by showing that defendant’s employees were in position to have caused the accident, and. by the exclusion of any others, a sufficient prima facie case was made out to go to a jury.” In the present case there was no evidence excluding any other cause and, therefore, Booth v. Dorsey is not in support of the plaintiff’s contention.
The judgment is reversed and the court below is directed to enter judgment upon the whole record in favor of the defendant non obstante veredicto.
Orlady, J., dissents.