Pawling v. Hoskins , 132 Pa. 617 ( 1890 )

Opinion,

Mr. Justice Williams :

Where the negligence of the defendant is the ground upon which a recovery in damages is sought, the burden of proof is on the plaintiff, and he must show the negligence of which he complains. There is a well-recognized exception to this rule in the case of common carriers. After the carrier has entered upon the performance of his contract to cany safely, if an injurious accident happens to or affects any of the means or appliances of carriage, whereby the plaintiff sustains injury, he is required to show only the happening of the accident, and the injury. The burden is then on the carrier to show that the accident was not the consequence of its own fault, or that of its employees, but was due to causes over which it had no control. With this exception, however, the rule is uniform that the burden of proving the facts on which the right to recover rests is on the plaintiff.

In this case, the plaintiff charged in his statement that, “through and by the negligence of the defendants,” he was thrown down, and caused to fall into or through, a trap-door on the premises of the defendants, and was thereby cut, bruised, wounded, etc. The proofs showed that the defendants were printers, engravers, and stationers at No. 927 Arch street, in the city of Philadelphia. In the cellar was the engine that furnished power to move the presses and machinery. On the first floor was a sales room. The upper stories were used for work rooms, and contained the presses and other machinery. The store was entered directly from the street. Access to the rest of the building was through a hall or passageway not communicating with the store. From this hall the engineer descended to the cellar through the trap-door, which was cut for that purpose, and the compositors and other employees ascended to the stories above by means of a staircase. The trap-door was used only by the engineer, who was under strict orders from his employers to close it behind him whenever he passed through it. He was the first to enter the building in the morning, and the last to leave it at night. The plaintiff knew the location and use of the door, and passed it several times each day for six months or more before the accident. On the morning of November 28, 1887, the plaintiff came to his work as usual, and, passing rapidly through the hall, fell into the opening at the trap-door. The engineer had passed into the building a few minutes before, and the evidence indicates that he was the only person who had done so prior to the plaintiff’s arrival. He says he shut the trap-door behind him; but this is impossible, if, as the plaintiff alleges, it was open when he reached it.

But the question to be considered is, what did the defendants do, or leave undone, in violation of their duty to the plaintiff? In what respect were they negligent? It cannot be said that they were negligent in permitting the plaintiff to pass through the hall without any knowledge of the existence of the trap-door, for he testifies that he knew all about its existence and use. There was no negligence in failing to instruct the engineer in his duty to keep the trap-door closed, for it appears in proof, and is not questioned, that such instructions were carefully given. There was no negligence in the manner of its construction. It was safely built, and when closed prevented the possibility of accident to those passing through the hall. There was no negligence in the fact of its existence, for it is conceded that it was a necessary means of access to the engine in the cellar, by which the machinery of the establishment was moved. By whose fault, then, was the accident made possible? Clearly, by that of a co-employee who neglected to close the trap-door behind him, notwithstanding the positive orders of his employers.

The learned judge of the court below seems to have entertained substantially the same view of the case, as appears by his answer to the defendants’ fourth point. The point asked an instruction that, “ if the plaintiff knew of the existence of the trap-door in the floor of the hallway through which he had to go to reach his work in the building, and that this trap-door was opened each morning to permit the engineer to enter the cellar before other employees of the defendants reached the building in which plaintiff was working, then the plaintiff is assumed to have undertaken to run the risk of said trap-door being left open by the engineer, and the plaintiff is not entitled to recover.” The learned judge answered: “ This point I affirm. A man is not entitled to recover damages for the risk which he knows is before him, in his path. In the case of danger, it is his duty to look out for it, and avoid it.” This covered the whole case. The plaintiff knew of the existence and use of the trap-door. He knew that the engineer by whom it was used reached the building a very few minutes before him, and it was his duty to be on the lookout. He was not. Because he was not, he fell into the opening. But, leaving the subject of his own contributory negligence out of view, the negligence of which he must complain is that of a co-employee, which affords no ground for a recovery in this case.

Judgment is therefore reversed.