Huey v. Gahlenbeck ( 1888 )

Opinion,

Mr. Justice Paxson:

The fifth assignment of error raises the only question I propose to discuss in this case. The defendant’s fifth point called upon the court to instruct the jury that “ under the facts proved in this case the verdict should be for the defendant.” The court refused to affirm this point. The result was a verdict against the defendant for $2,000 without a particle of proof to convict him of negligence.

The defendant below had a place of business where merchandise and other property is received for storage purposes. The plaintiff had a number of boxes and trunks there on storage. On the morning of August 10, 1885, the plaintiff called at said warehouse to get one of his trunks. He was invited into the warehouse to point it out. He followed William H. Huey, a clerk of defendant, into the warehouse for that purpose. Whilst so engaged the plaintiff fell down the elevator hole into the cellar and was injured. About this there can be no dispute as he was found there in an injured state and taken to the German Hospital. If this were all, the plaintiff would have no cause of action, as he knew of the elevator and could and should have avoided it. But the plaintiff alleges, and so testified upon the trial below, that he was injured by something falling upon him. He said: “ I saw the elevator when I went into the back part of the place, and when I got near to the elevator something came down and struck me and scraped my face and I fell down upon my back.” The witness was not able to say what it was that struck him; he did not see anything nor did any other witness notice an article of any kind in the building out of place. There was no evidence that the boxes and parcels, with which the place was filled, had not been piled up with proper care, or that any one of them had fallen down. There was not a scintilla of proof that the defendant had been guilty of any negligence; there was absolutely nothing beyond the fact that the plaintiff was lawfully in the defendant’s store, and while there, was injured by something, which no witness saw or could describe, falling upon him. Was this sufficient to convict the defendant of negligence ?

I do not understand that when A. is lawfully upon the premises of B., for business purposes or otherwise, that B. is absolutely liable as a guarantor for the safety of A. If an accident occurs to the latter under such circumstances, without negligence on the part of B., I am unable to see how under any rational rule of law B. is to be held responsible.

The case of Scott v. Dock Company, 3 Hurlst. & C. 596, cited in Wharton on Negligence, at page 701, and relied upon by the plaintiff below, differs from this in an essential particular. In that case a custom-house officer, visiting a store upon his lawful business, was injured by the fall of sugar bags from a loft over a door on the defendant’s premises. No explanation was given of the cause of the occurrence. The fact was, however, held evidence of negligence, “ as such a passage-way should be guarded from casualties that could be prevented by due care.” It will be observed that in the case cited the plaintiff was injured by a bag of sugar falling upon him. , If the plaintiff in this case had been struck by one of the boxes piled up in the store falling upon him, we would have no hesitation in saying that it was evidence that the boxes had been piled negligently. Just here is the pinch of the plaintiff’s case. He cannot say what struck him. It may have been the act of some one not in the employ of defendant; possibly a mere trespasser on the premises. The like criticism may be made of the case of Briggs v. Oliver, 4 Hurlst. & C. 403, and others cited by defendant in error. The nearest approach to the case in hand is Lake Shore Railroad Company v. Rosenzweig, 113 Pa. 519. In that case the plaintiff could not say what struck him; he could describe certain things around him which might have done so, and he was allowed to recover a verdict of $48,750. That case certainly went much further than any other in this country or in England, in the line of allowing a recovery without evidence. It was heard in the absence of two of the members of the court and those that sat were not unanimous. We are not disposed to go any further in that direction, or to follow it to the extreme length now asked of us, but we will allow it to stand upon its own facts. Aside from this case I know of no well-considered case that will sustain the one in hand. The mere fact that something fell on the plaintiff’s head, without more, is not evidence of negligence on the part of the defendant. • He cannot be convicted of negligence and compelled to pay a large sum of money without proof. We are not prepared to sustain the doctrine that the owner of property is hable for every injury that may occur to another therein or thereon, in the absence of any evidence that such injury was the result of the negligence of the owner. We are of opinion that the defendant’s fifth point should have been affirmed.

Judgment reversed.