Birnbaum v. Philadelphia & Reading Railway Co. , 249 Pa. 238 ( 1915 )

Per Curiam,

Abraham Birnbaum, a boy seven years of age, while walking on a street in the city of Philadelphia, upon which the Philadelphia & Reading Railway Company maintains tracks for the operation of freight trains, picked up a dynamite cap which he found lying between the tracks. He hit it. with a brick or stone and an explosion followed, resulting in serious injury to him. Nothing was developed in the testimony to fasten responsibility upon the railway company for the presence of the explosive upon the street where the boy found it, and the jury were correctly instructed to render a verdict for the defendant. In the absence of evidence of such responsibility, the plaintiff was not entitled to recover: Gralka v. Worth Bros. Company, 245 Pa. 467. The judgment is affirmed on the following from the charge of the learned trial judge: “As there is no evidence to impute negligence to the railroad by that one torpedo being found on a public street, I do hot see how the defendant can be charged with any liability in respect to it. Who dropped it, where he got it, what was the occasion or purpose of his dropping it, we do not know. No defendant can be held liable in a court of justice on a mere guess without evidence.”

Judgment affirmed.