Devlin v. Beacon Light Co. , 198 Pa. 583 ( 1901 )

Opinion by

Mb. Justice Fell,

When this case was here before, it was decided (1) that proof by the plaintiffs that the defendant’s workmen had allowed a wire charged with electricity to lie on the pavement of a main street without warning to those who passed by, established prima facie a case of negligence; (2) that a nonsuit should not have been entered on the ground that the plaintiff saw, or should have seen, the wire as she stepped from the crossing to the pavement, and was to be charged with contributory negligence in not avoiding the danger: Devlin v. Beacon Light Co., 192 Pa. 188. The defendant’s legal contention at the second trial was that, having shown by testimony that was neither contradicted nor discredited, that the wire had been cut out of the circuit and disconnected at both ends before it was placed on the pavement, and could not have been charged with electricity by the defendant’s dynamo, nor, because of its position, by contact with other wires, it was entitled to a peremptory direction in its favor. On this proposition all the assignments of error are based.

The burden on the defendant was not satisfactorily to account for the accident, but only to show that it had used due care; and if the testimony produced by it was credited, it amounted to a demonstration that there was no cause of action. But whether the witnesses were entitled to belief was necessarily a question for the jury. The plaintiff showed a series of acts from which the inference of negligence on the part of the defendant arose; that inference was sufficient to carry the case to the jury; having once arisen, it remained until overcome by countervailing proof; whether so overcome was a question of fact which the court could not determine: Penna. R. R. Co. v. Miller, 87 Pa. 895; Penna. R. R. Co. v. Weiss, 87 Pa. 447; Spear v. Phila., Wilmington & Baltimore R. R. Co., 119 Pa. 61; McCafferty v. Penna. R. R. Co., 193 Pa. 339. The rule stated in Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610, that a verdict maybe directed where a different conclusion could not be reached by the jury without a capricious disregard of apparently truthful testimony that is in itself probable and is not at variance with any proved or admitted facts, does not apply where there is a conflict of testimony, unless that on one side amounts only to a scintilla.

The judgment is affirmed.