Howard Express Co. v. Wile , 1870 Pa. LEXIS 338 ( 1870 )

The opinion of the court was delivered,

by Sharswood, J.

— The doctrine that wherever there is a scintilla of evidence of a material fact, the question must be submitted to the jury has not stood the test of experience, and it has accord-' ingly been exploded in England: Ryder v. Coombwell, Law Rep. 4 Exch. 34. The more reasonable statement of the rule is, that where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof. A court may set aside a verdict as against the weight of the evidence, but that is the most they can do to assist the party. But in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Wherever this is so they have the right, and it is their duty to withhold it from the jury. Evidence may be legally admissible as tending to prove a particular fact, which yet by itself is utterly insufficient for the purpose. It may be a link in the chain, but it cannot make a chain unless other links are added. Where successive juries from prejudice against one party or sympathy for the other, persist in finding verdicts wholly unwarranted, must the court permit palpable injustice to be done ? If a verdict is contrary to the charge of the court on a question of law it must be set aside, whether it be the second or the second hundredth. Where evidence on both sides is to be weighed, so as to determine on which side the scales incline, the jury is the appropriate tribunal. But where the weight on one side is of such a character as not to incline the beam at all — what the civilians term a mere adminiculum, good to help something else but nothing in itself — nothing but a conjecture — then it is as much a question for the court as if even this scintilla was absent. The rule thus understood does not impair the true value of trial by jury. It restrains it from arbitrary power, which would endanger its existence, and might lead to its entire abolition, a result which I agree with the learned President of the District Court, would be very much to be deprecated.

The plaintiff’s own evidence in the court below showed that the defendants had fully performed their duty as carriers. So the jury were properly instructed. The package was taken to the plaintiff’s place of business during business hours, and no one was there to receive it. The office was closed — no one was about. Notice was left under the door, which in fact was received. All that was done was to send to the office of the Express Company, where the servant or clerk was told that the company’s messenger was out delivering packages and had not yet returned. No other or further demand was made. Here the plaintiff rested, and here he might have been nonsuited had a motion for that purpose been made. On his own showing, the onus of proving negligence was upon him. The defendants, however, took up the case at this point. It was on Saturday the package was received, and attempted to be delivered. When returned to the defendants it was deposited in their fire-proof. On the Monday night following a fire broke out in the building, in no way pretended to be attributable to the defendants or any of their servants. Their watchman having the key of the fire-proof, left with him for the very purpose of using in such a contingency, opened it and removed the packages in order to have them taken to some place of safety. In the hurry, excitement and confusion of the scene this particular package was lost or stolen. What was there in this to leave to a jury as evidence of negligence ? We think there was nothing. It is said that if the fire-proof had not been opened, all that it contained would probably have been saved. The fire-proof fell through into the cellar, and was found uninjured the next day. But we are not to judge the actions of men by the event. The question is, did the watchman act with reasonable care and prudence ? Had he suffered the package to remain when he had time and opportunity to remove it, and it had been burned up by the fire, or the fire-proof broken open and rifled of its contents, the imputation of negligence would have been much more plausible.

As it was agreed between the counsel, on the motion for a new trial, that the question of negligence might be considered and decided by the court in banc, the same as if it had been reserved at the trial, and it appears by the record that the court gave judgment for the plaintiff on the point reserved, we have the unquestionable right, besides reversing the judgment, to enter such a judgment as the court below ought to have done.

Judgment reversed, and now judgment for the defendants below on the point reserved.