Stern v. Reading , 255 Pa. 96 ( 1916 )

Opinion by

Mr. Chief Justice Brown,

While driving on Fifth street, in the City of Reading, the pin bolt of the shafts of plaintiff’s wagon was dislodged and the vehicle was so jarred that he was thrown from his seat onto the street. The wheels of the wagon passed over him and he was severely injured. In this action he avers that the dislodging of the pin bolt was caused by a wheel of his wagon getting into a hole at the intersection of Fifth and Chestnut streets. It was shown that there was a hole at that point, that the pin bolt had been dislodged and that plaintiff had fallen from his wagon and was injured; but the learned trial judge sustained a motion for a nonsuit for the reason that it had not appeared that the hole in the street had caused the injuries to the plaintiff. If the hole was of the dimensions given by the witnesses, the plaintiff, if he had exercised ordinary care, could not have avoided seeing it from his seat in the open wagon, for the accident occurred on a clear day, in broad daylight. While his contributory negligence would have been a good ground for the non-suit, the learned trial judge was clearly right in holding that the evidence failed to disclose that the negligence of the city in permitting the hole to remain in the street had caused the accident. No other conclusion could have been reached from the plaintiff’s own testimony. The averment in his statement is that the bolt was dislodged because a wheel of his wagon “fell or. went into” a deep hole in the street; but this is his testimony: “Q. You didn’t see a hole? A. I surely didn’t, no, sir. Q. How do you know it went into a hole? A. I don’t know that. Q. You don’t know that? A. But I know that I was thrown off. I hit something and was thrown off. I could feel that the wheel went down.......Q. How do you know there was a hole on the, day you drove by there? A. I guessed there was a hole because my wheel went in.” No witness called t)y the plaintiff saw the accident, and, in view of his own testimony, the learned trial judge, in discharging the rule to take off the nonsuit, properly said: “The utmost effect that can be accorded to plaintiff’s evidence is to show the existence of an opportunity in the condition of the street for the happening of the injury complained of. But proof of such opportunity, without more, is not proof of the fact that it did so happen : see Wagener v. Ry. Co., 235 Pa. 559, at p. 562, and cases there cited. For aught the evidence indicates, it may have been caused by the dropping out of its place of the pin bolt for some reason for which the defendant was not at all responsible.”

When negligence is averred as the cause of injuries sustained, it is not sufficient that the injured plaintiff establishes merely the negligence alleged; he must show that it was the cause of his injuries. In the very recent case of Reddington v. City of Philadelphia, 253 Pa. 390, the plaintiff’s complaint was that her foot had slipped into a hole or depression shown to have existed in the pavement over which she was walking. In sustaining the judgment of nonsuit, we said, through Mr. Justice Mestrezat, what is equally applicable to this appellant’s case: “The difficulty with the plaintiff’s case is that she failed to sustain by proof the averment .that she was thrown by reason of her foot slipping into the hole. The party who claims damages by reason of the negligent act of another must show, not only that the other party was negligent but that his injuries are the result of such negligence. The complaining party has no cause of action unless the wrongdoer’s act produces the injuries complained of.”

Judgment affirmed.