Kepner v. Harrisburg Traction Co.

Opinion by Mb. Justice McCollum, While the plaintiff and Montgomery were riding in a piano wagon on Market street in the city of Harrisburg, their horse was frightened by the breaking of a trolley wire, and the plaintiff, alarmed by the noise and electric flashes occasioned by it, and by the plunging of the horse, jumped or was thrown from the wagon to the ground and was seriously injured thereby. Neither the wagon or the horse, nor the plaintiff or his companion, was struck or touched by the wire, or injured by the sparks emitted from it. It is not claimed that the occurrence can be attributed to any defect in the wagon, or to the negligence of either of the persons in it. The wire was an essential appliance of the defendant in the operation of its road, and it is contended that the breaking of it raised a presumption of negligence which, unanswered, furnished adequate ground for a recovery in the suit in accordance with the plaintiff’s claim. The learned court below thought that the circumstances shown by the evidence did not authorize the presumption contended for, and accordingly entered a nonsuit, which it refused to take off. The question presented by the appeal from the refusal to take off the nonsuit is whether the court erred in so holding. The general rule is that the plaintiff whose suit is grounded upon the alleged negligence of the defendant must not only establish the negligence by competent evidence but he must show that it was the cause of the injury for which he sues. The exceptions to. the rule are rare'. The majority of our own cases which have been held to be within the exceptions were suits by passengers against railroad companies for injuries received by the former while being conveyed on the trains un [31] tier the control and management of the latter. “Authority need scarcely be cited to establish that where an injury occurs to a passenger in consequence of something done or not done, connected .with the appliances of transportation, there arises the presumption of negligence which the carrier is required to rebut. This presumption necessarily arises from the contract of carriage, under which the passenger passively trusts himself to the safety of the carrier’s means of transportation, and to the skill and diligence and care of his servants; and by which the carrier, in consideration of the fare, undertakes to carry safely, and to do so, to furnish the best means and appliances for the purpose, and competent, skillful and diligent servants: ” Thompson, J., in Fleming v. Railway, 158 Pa. 135. So the happening of an accident to a passenger on a street car, if the accident is connected with the means of transportation, raises a presumption of negligence on the part of the company: Clow v. Pittsburgh Traction Co., 158 Pa. 410; Dixey v. Traction Co., 180 Pa. 401, and O'Connor v. Traction Co., in same vol. p. 444. In Shafer v. Lacock et al., 168 Pa. 497, it was held that the circumstances shown by the evidence authorized an inference or presumption of negligence which cast on the defendants the burden of showing their freedom from fault in connection with the destruction of the plaintiff’s house. In the case last cited, as in the cases previously referred to, there was a contract relation between the parties which required of the defendants the use of proper appliances and the employment of careful and skillful workmen to carry out their agreement with plaintiff. “ The occurrence was not in the ordinary course of things, and the circumstances connected with and surrounding it put on them the duty of showing that it was at least consistent with the exercise of proper care in the performance of their work.” Besides, there was evidence that the workmen declared while the fire was in progress that it was caused by their carelessness. Not one of the cases to which we have referred affords any support to the plaintiff’s contention in the case before us. It is not a case in which there was a contract relation between the parties, or in which the plaintiff was directly injured by the breaking of one of the appliances used by the defendant in the operation of its road. It closely resembles the case of Yingst v. Railway Co., 167 Pa. 438, in which “ the plain [32] tiff’s injuries resulted from the upsetting of a wagon in which site was riding, occasioned exclusively by the fright of the horse drawing the wagon. The horse took fright upon seeing an approaching street car on the defendant’s track, and turning suddenly away from the road, the wheel of the wagon struck a stone or other obstacle, and this caused the overthrow of the vehicle. There was no collision of any kind, the wagon was not on the track, but was being drawn upon the highway on which the defendant’s track was laid.” In that case the negligence complained of was the speed of the car, and in this it is the breaking of the trolley wire. In that the horse was frightened by the rapid approach of the ear, and in this' by the noise made by the breaking of the wire. In that case it was held that “ as the plaintiff was not a passenger, the burden of proof Avas on her to establish the truth of her allegations by affirmative testimony, failing in which she must fail in her suit.” We need not add anything to what was said by the court below respecting other cases cited by the plaintiff from the reports of this and other states. It is clear that the plaintiff’s proposition cannot be sustained without a wide departure from the well settled rule, in cases of this nature, supported by numerous decisions of this court. We find nothing in the evidence which warrants such a departure. The nonsuit is therefore sustained. Judgment affirmed.