Hays v. Gallagher , 1872 Pa. LEXIS 218 ( 1872 )

The opinion of the court was delivered, by

Shakswood, J.

— It is unnecessary to consider the several assignments of error seriatim. There is nothing in any of them which requires discussion except the refusal of the court below to affirm the fifth point of the plaintiff in error, and the submission of the case to the jury upon the evidence.

It must be conceded that the bridge erected by the defendant over his coal railway, was at the time of the accident, by which the plaintiff below sustained injury, in an unsafe and dangerous condition — especially to travellers by night. Originally it was constructed with railings on both sides, but they had decayed or been torn away. The duty of repair was clearly on the plaintiff in error: Phoenixville v. Phoenix Iron Co., 9 Wright 135. Without these guards it was quite possible that a traveller on a dark night, with every care on his part, might mistake his course and walk over the side of the bridge. The cut was five or six feet deep, so that the fall would necessarily cause more or less injury. Even death might well result from such an accident. It was through the negligence of the defendant that this danger existed. Nor can there be any doubt upon the evidence that' the injury suffered by the plaintiff below did arise in this way. He was found lying immediately under the bridge, much hurt, upon a very dark night— about midnight. He declared at the time that he had fallen from the bridge. It is true, however, that there was no evidence as to the precise circumstances of the accident. The plaintiff below himself was not examined as a witness, though he was present in court. It is maintained by the plaintiff in error that this evidence was not sufficient, as it did not show a case clear of contributory negligence.

In Beatty v. Gilmore, 4 Harris 463, it was held by this court that in such an action as this, if no facts are proved from which a deduction of want of ordinary care, on the part of the plaintiff, can be drawn, the presumption is against the defendant, whose misconduct rendered the accident possible. In that case it is remarked by Mr. Justice Bell that “when in the darkness and solitude of the night, one suffers grievous injury from the culpable commission or omission of another, the carelessness which would excuse ought certainly to be of a very gross character, made apparent by direct or circumstantial proof.” There is nothing in Waters v. Wing, 9 P. F. Smith 211, which is inconsistent with this doctrine. That was a case of an injury from an accident in broad daylight. The plaintiff was riding on horseback on a public road. The defendant was driving a buggy in the opposite direction ; the shaft of the defendant’s buggy ran into and killed the plaintiff’s horse. “ It is the duty of a plaintiff seeking to recover.,” said Chief Justice Thompson, “ where the gravamen of the action is the alleged negligence of the defendant, to show a case clear of contributory negligence on his own part. In other words, he must establish a primái facie cause of action, resulting exclusively from the negligence and wrong of the defendant, before the latter need answer at all. The learned judge went too far, therefore, we think, in holding as he did in effect, in his answer to the point, that the plaintiff was not holden to such a rule, and that the defendant must disprove care, and thus establish negligence on part of the plaintiff. This would be so in a prima, facie case on part of the plaintiff. But he should have so answered the point that the jury might have been left free to consider the defects in the plaintiff’s case. If ever there was a case in which this was a duty, it was in this case. The accident occurred in open day, on a broad public highway, by a rider running his horse so hard upon the shaft of a buggy, driven at an ordinary gait, as instantly to kill the horse, though there was plenty of room to pass without obstruction.” It is plain that Waters v. Wing in no way impinges upon the rule in Beatty v. Gilmore, but is entirely accordant with it. If the plaintiff’s own evidence discloses facts which prove negligence, it is not necessary that the defendant should prove it. This almost self-evident proposition was subsequently affirmed in Pennsylvania. Canal Co. v. Bentley, 16 P. F. Smith 30, while it was at the same time there distinctly ruled that if the plaintiff makes out a primá, facie case the burden is on the defendant to disprove care or show contributory negligence.

Had the plaintiff below fallen from the bridge in question, being of the width of eighteen feet, in broad daylight, there would be great reason for saying that it could only have happened from the want of ordinary care on his part, and to have taken the case from the jury. But certainly such bridges should be constructed and kept in repair so as to be safe for travellers by night as well as by day. ' But though there was no evidence of the circumstances of the fall from which any inference of negligence upon so dark a night could be inferred, nevertheless the learned judge below instructed the jury that “ if the plaintiff’s injuries resulted either in whole or in part from the want of ordinary care and prudence on his own part he is not entitled to recover any damages.” In answer to one of the points he had also said “ that the jury might properly give some weight to the fact that the plaintiff, who was a competent witness, present in court during the trial, had not been called to explain how the accident occurred.” If the plaintiff below had made out a primd facie case, without his own testimony, he was certainly not bound to offer himself as a witness. The defendant might have called and examined him. Of all this the plaintiff in error has certainly no right to complain.

Judgment affirmed.

Thompson, O. J.

— It seems to me under the facts in this case, viz.: that the bridge was only eight or ten feet long and was eighteen feet wide, and that the plaintiff was perfectly well acquainted with it, that some evidence ought to have been given to clear him of negligence; for want of this, I dissent from the affirmance of the judgment.