Kelly v. Philadelphia, Baltimore & Washington R. R. , 270 Pa. 149 ( 1921 )

Opinion by

Mr. Justice Walling,

This suit is by a passenger for personal injuries. The private warehouse of J. Walter Jones is situated by the side of appellee’s road, at Clifton Heights, Delaware County. Defendant has a switch track extending into the warehouse and over it are large double doors that open outward so as to permit the entry or exit of freight cars. When the doors are opened at right angles with the building they extend out so far as to collide with cars passing on the main track. To prevent this a post had been set in defendant’s right-of-way, but on September 24,1916, it was removed by workmen while changing the grade of the tracks. On the following morning plaintiff was injured by one of the doors swinging out against the car wherein she was a passenger. The door was opened by the employees of Jones, just as, or shortly before, the train passed. The negligent act complained of was the removal of the post, but how long it had stood there or by whom originally erected was not shown. The trial judge granted a compulsory nonsuit, and the refusal to take off the same constitutes the basis of plaintiff’s appeal.

The case was rightly decided. As plaintiff’s injury did not result from any defect in the instrumentalities of transportation, the burden was upon her to prove negligence on part of defendant, which she failed to do. Nothing was shown indicating any authority on part of Jones to swing his doors over defendant’s right-of-way, or to make it incumbent upon the latter to prevent him from so doing, by means of a post or otherwise. Nor was it shown that Jones had any right to maintain the post on defendant’s property. It was the duty of Jones to safely control his doors and nothing was shown to transfer that duty to defendant. The mere fact that it removed the post in question does not make out a prima facie case of negligence.

Moreover, the removal of the post was not the proximate cause of the accident. As we said in Bruggeman v. City of York, 259 Pa. 94, “A proximate cause is one which, in actual sequence, undisturbed by any independent cause, produces the result complained of......A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated and efficient cause of the injury.” In the present case the actual efficient cause was the act of the Jones employees in opening the door; it was the direct, voluntary, intelligent, independent, intervening cause of the accident, and, therefore, its proximate cause; and over such employees defendant had no control.

The judgment is affirmed.

Mr. Justice Frazer dissented.