153 Pa. 117 | Pa. | 1893
Opinion by
Joseph Sekerak was drowned in the Monongahela river on the second of May, 1891, and his widow Theresa Sekerak, claiming that his death was caused by the negligence of the appel
Was the collision caused by the negligence of the appellant’s servants ? No presumption of negligence arises from the mere occurrence of it, and an affirmative answer to the question must rest on evidence which shows some omission of duty or careless act on their part. In considering this question we must not lose sight of certain important facts which are established
It was justly regarded in the court below as clear and certain that the parties in charge of the tow were not negligent prior to their discovery that the occupants of the dog-boat appeared to be unable to manage it. The jury were accordingly instructed that their inquiry respecting the alleged negligence of the appellant’s servants should be confined to what occurred after such discovery. There was nothing in the situation or movements of the dog-boat, until it was turned around as before stated, which indicated to the pilot or any person on the steamboat or tow that it was likely to come in contact with the tow, or that the parties in it had from fear or incapacity lost control of it. On the contrary there is a substantial concurrence in the evidence to the effect that, but for this loss of control, the boat would have been on the Washington county side of the tow and at a safe distance from it when the latter crossed its course.
Eight persons called by the appellants testified that before the boat was turned around it had cleared the tow, and their testimony in this particular was not questioned in rebuttal; nor can we find in the evidence produced by the appellee in chief anything in direct or substantial conflict with it. It is true that John Roberts, in answer to the question, “Were the three men in front of the tow when they commenced turning around ? ” said “ they were by a matter of ten or twelve feet,” but we think his examination taken as a whole shows that he meant they were ten or twelve feet away from the tow at that time. It will thus be seen that the change in the movement of the boat which brought a portion of it in front of the tow was sudden, unexpected and disconcerting. The action of the appellant’s servants must therefore be considered in the light of the situation which suddenly confronted them. They were in the presence of an emergency which imperiled the lives of
But we need not rest the case on this principle. The evidence is clear, convincing and uncontradicted that when it became apparent to the parties in charge of the tow that the men in the dog-boat had lost control of it, the former did all it was possible to do to rescue the latter from the impending danger. The engine was reversed, the forward movement of the tow stopped, and the backward movement of it commenced within a space of time which left no room for conjecture that the action of the appellant’s servants was hesitating or tardy. There is not a scintilla of evidence that this change in the movement of the tow could have been effected in less time, or that better action in avoidance of the collision was possible. Where then is the negligence imputable to them? What omission of duty or act of carelessness on their part in connection with this unfortunate occurrence does the evidence disclose ? To these inquiries we reply that a careful consideration of all the testimony has convinced us there is nothing in it' from which an inference of such omission or act can be justly drawn.
While this conclusion is fatal to the claim of the appellee, it is proper to add that, as the parties in the dog-boat were not experienced oarsmen nor accustomed to managing boats of that description, their attempt to cross the river ahead of the steamboat and tow was, under the circumstances shown, an act of inexcusable negligence.
The sixth specification of error is sustained, and this renders any consideration of the other specifications unnecessary.
Judgment reversed.