38 Pa. Super. 228 | Pa. Super. Ct. | 1909
Opinion by
The plaintiff’s right to recover does not depend on an inference of negligence to be drawn by the jury from the happening of the accident alone. There was evidence not only that he was injured by the violent uplifting of a portion of the surface of a public street on which he was lawfully walking, but that this uplifting was caused by an explosion in an electric conduit owned and used by the defendant; that a fire had been burning in the conduit from seven o’clock in the morning or earlier until after eleven of the same forenoon; that the defendant had knowledge of this state of affairs and its superintendent was present with several employees of the company at seven o’clock in the morning and during the forenoon engaged in an effort to extinguish the fire. In so doing they removed manhole covers and thereby increased the current of air and gas in the conduit and admitted air thereto, during all of which time the currents of electricity were in action along the wires in the conduit. While the fire was in progress an assistant foreman of the fire department who was present asked the superintendent of the defendant to have the electric current shut off. This the superintendent declined to do, saying there was no danger and that it would deprive the patrons of light. Two or three small explosions occurred in the conduit before that which caused the plaintiff’s injury. It was further shown by an electrical engineer conceded to be a competent expert that the opening of the manholes increased the danger and the likelihood of such an explosion as occurred and that it was recognized by those familiar with the subject as being a proper practice in such a case to smother out the fire by excluding air from the surface. It was also shown
The learned trial judge submitted the case to the jury on the doctrine of the inference of negligence from the happening of the accident under the circumstances of the case. In the opinion on the defendant’s rule for judgment non obstante veredicto, however, he expressed the view that there was evidence to take the case to the jury in addition to the occurrence itself. The position taken in the charge was that where the defendant in the exercise of a special franchise interfered with the ordinary
The case now under consideration comes within the latter class. The defendant constructed the conduit under the street, placed its apparatus therein, operated it according to its own plans and methods and had exclusive control thereof. It was not subject to other inspection or observation than that of the defendant's employees. An accident happened, to wit: the up-heaving of the street, an effect not usually attending a structure such as the defendant maintained. It was an event so far out of the usual course as to warrant the inference that it could only have taken place because of negligence.
The appellant relies on Kepner v. Harrisburg Traction Co., 183 Pa. 24, and Aument v. Penna. Telephone Company, 28 Pa. Superior Ct. 610, as authorities sustaining its position, but the difference in the facts distinguishes those cases from this. Each of them related to a broken wire. In the first a horse was frightened by electric sparks; in the second, a horse was killed by a broken telephone wire which was in contact with a live electric wire. There was nothing in either case except the solitary fact of the broken wire from which an inference of negligence might be
The judgment is affirmed.