Wetzel v. Philadelphia Traction Co.

Opinion by

Mb. Chief Justice Stebbett,

That this case involved cardinal questions of fact which the court below was bound to submit to the jury for their consideration and determination is too clear to admit of any rational doubt. It was accordingly submitted by the learned trial judge in a clear, impartial and fully adequate charge that is beyond the reach of any adverse criticism of the defendant. After concisely and accurately instructing the jury as to the law applicable to such facts as the evidence tended to prove, he further instructed them, in the very words of defendant’s first three points for charge, thus:

1. If the jury believes from the evidence that the collision was due to the negligence of the motorman of the People’s Traction Company, then the plaintiff, being the conductor of the same company, cannot recover.

2. If the jury believes from the evidence that the collision was due to the negligence of both motormen, then the plaintiff’s right to recover is barred.

3. The plaintiff, in order to recover in this case, must prove affirmatively that neither himself nor the motorman of the car upon which they both worked was guilty of negligence, and that the servants of the defendant company, and they alone, were negligent, and that their negligence was the proximate cause of the injury.

The first clause of this proposition is more favorable to defendant company than it should have been. In making out his case, the plaintiff was not bound to prove such negative facts: Canal Co. v. Bentley, 66 Pa. 30; Bradwell v. Railway Co., 139 Pa. 404; Baker v. Gas Co., 157 Pa. 593.

The verdict for plaintiff necessarily implies that the jury found in accordance with the third proposition, supra, “ that neither (the plaintiff) himself nor the motorman of the car upon which they both worked was guilty of negligence, and that the servants of the defendant company, and they alone, were negligent, and that their negligence was the proximate cause of the injury.” It also implies that the jury were unable to find the facts of which either the first or the second proposition, supra, is predicated, for otherwise their verdict would have been for the defendant. It follows, therefore, that under each of the three foregoing requests for instruction submitted by defendant and affirmed by the court, the jury found the facts against the company. That practically disposed of its entire defense. But, in addition to said requests the defendant, in its fourth and last point, asked the court to charge that, “ under all the evidence, the verdict should be for the defendant.” Refusal to give this binding instruction, and thus take the case from the jury, constitutes the only assignment of error on the record.

In view of the fact, clearly and conclusively shown by the testimony, that controlling questions of fact, for the exclusive consideration of the jury, were presented and had to be submitted to them, the learned judge was undoubtedly right in refusing to charge as requested. That such disputed questions of fact were presented is evidenced by the defendant’s first, second and third points for charge, supra. While those and similar questions requiring submission of the case to the jury were clearly presented, there is nothing whatever in the record, from beginning to end, that would have warranted the court in directing a verdict for the defendant. The Act of April 4, 1868, P. L. 58, is inapplicable to any of the facts of this case. Further elaboration is unnecessary.

Judgment affirmed.