Kurts v. Philadelphia Rapid Transit Co.

Opinion by

Mb. Justice Elkin,

In charging the jury the learned trial judge said that the evidence of negligence was “extremely scanty,” and, after a careful reading of all the testimony, we have concluded that the remark quoted was not only fully justified but that it did not go far enough. There is not a particle of evidence to show that the trolley car was running at an excessive and negligent rate of speed as charged, or that it was operated in a careless and improper manner. This is not a case in which the presumption of negligence arises, but the burden was on plaintiff to prove actual negligence. This was the view of the learned trial judge and he so instructed the jury, but we fail to find any evidence to sustain the charge of actual negligence or to warrant such an inference. There is no evidence that the motorman saw the horse shy in time to avoid the accident - indeed the only direct evidence as to this fact is that the horse did not shy until the front of the car had passed the head of the horse. The car was slowing down as it neared the crossing and the wagon which caused the injury was on the east side of Catherine street coining toward the moving car. The evidence shows that the motorman had no reason to apprehend that the horse would shy, or that there was any danger of a collision between the two vehicles. There is not the slightest doubt that the sudden and unexpected shying of the horse caused the injuries which resulted in the death of the passenger who was standing on the running board of the car. The shaft of the wagon penetrated the stomach and resulted in death two days later. We search the record in vain for any evidence to warrant an inference that the untimely death of the husband was due to anything done or left undone by appellant. The street railway company had no control of the horse or wagon which caused the injuries, and there was nothing to put the motorman on notice that the horse would shy, or that the passengers were in danger of coming in contact with a passing wagon. What was said by this court in Pittsburgh Southern Railway Co. v. Taylor, 104 Pa. 306, and in Fredericks v. Railroad Co., 157 Pa. 103, applies with convincing force to the facts of the present case. The judgment in the case at bar cannot be sustained without doing violence to the settled rule that the burden is on the plaintiff to establish the necessary facts to sustain the negligent acts upon which the right to recover depends. To sustain the judgment in the present case means that a jury may be permitted to find a verdict without any evidence of negligence and in disregard of settled rules of law.

Several other questions are raised by the assignments of error but in view of what has been stated it is not necessary to either discuss or decide them in order to dispose of this appeal. What we do decide is that there was no evidence of negligence upon which to sustain a recovery in the present case and that it was error to submit it to the jury.

Judgment reversed and is here entered for defendant upon the whole record.