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A question of considerable novelty in the law applicable to common carriers of passengers arose in the case of Pennsylvania Co. v. McKinny, decided recently by the Supreme Court of Pennsylvania, and reported in 17 Atlantic Reports, 14. It appears that the plaintiff, while a passenger on a train in rapid motion, was struck over the eye by a hard substance, thought by surgeons to be coal, and was severely injured. Another train was at the time passing, and the engine was opposite plaintiff. There was no evidence to show where the missile came from. The operators of plaintiff's train testified that they knew nothing to cause it, and those of passing trains testified that nothing was thrown or escaped from their trains. There was evidence that the appliances and machinery of the trains were in good order.

In his charge to the jury the Court, among other things, said: “The rule of law, as applicable to this case, is that the mere happening of an injurious accident to a passenger while in the hands of the carrier will raise prima facie a presumption of negligence, and throws the onus that it did not exist on the carrier.”

“Under this principle and the facts in this case, the jury will begin their consideration with the fact established that the injuries were the result of negligence of the defendant. This fact must be rebutted or answered by evidence. In other words, the defendant must show by evidence that it was not negligent. If it has not done this the verdict must be for the

plaintiff.” In immediate connection therewith, he said to the jury: "It is your duty, of course, to consider all the evidence in the case and to come to a conclusion on this question of negligence. If you find that the defendant was negligent, then the question of damages must be considered by you."

Mr. Justice Sterrett, delivering the opinion of the Supreme Court, admitted that the rule stated by the trial court was well settled and of general application in cases of injury to passengers while in the course of transportation, and that the only question was whether it is one of such universal application that it can be invoked without proof of something more than the mere fact of an injurious accident to a passenger while in the hands of the carrier in the absence of any admission or evidence tending to connect the carrier or its servants or any of the appliances of transportation with the happening of the injury.

“The rule in question has been frequently recognized, and the presumption of negligence applied in a variety of cases, among which are stage coach accidents, resulting from breaking an axle, etc., railroad accidents, including derailment of cars, collisions, breaking of machinery, falling of berths of sleeping-cars, violent out-break among other passengers on train, explosion on passenger vessels, etc.: Christie v. Griggs, 2 Camp., 79; Stokes v. Saltonstall, 13 Peters, 181; Ware v. Gay, 11 Pick., 109; Hipeley v. Railroad Co., 27 Am. & E. R. Cases, 287; Feital v. Middlesex R. R. Co., 109 Mass., 398; Edgerton v. Railroad Co., 39 N. Y., 229; Sullivan v. Railroad Co., 30 Pa. St. 237; Railroad Co. v. Wolrath, 8 Am. & E. R. R. Cases, 371; Railroad Co. v. Pollard, 76 Pa. St., 510, 513; Spear v. Railroad Co., 119 Id., 61; Packet Co. v. McCool, 8 Am. & E. R. R. Cases, 390; Laing v. Colder, 8 Pa. St. 481; Holbrook v. Railroad Co., 12 N. Y., 236; Railroad Co. v. Anderson, 94 Id. 351; Story on Bailments, 592, 601; Sherman & Redfield on Negligence, $$ 280a, and notes.

“In nearly every case in which the rule under consideration has been applied, it will be found that the injury complained of was shown to have resulted from breaking of machinery, collision, derailment of cars, or something improper and unsafe in

the appliances of transportation or in the conduct of the business, and not from any cause wholly disconnected therewith.

If a passenger seated in a railroad car is injured in a collision by the upsetting of the car, breaking of a wheel, axle, or other part of the machinery, he is not required to do more, in the first instance, than prove the fact and show the nature and extent of the injury. A prima facie case for plaintiff is thus made out, and the onus is cast on the carrier to disprove negligence. It is reasonable that it should be so, because the company has within its possession and under its control almost exclusively the means of knowing what occasions the injury, and of explaining how it occurred, while, as a general rule, the passenger is destitute of all knowledge that would enable him to present the facts and fasten the negligence on the company.

“When a passenger is injured by any accident connected with the means or appliances of transportation, there naturally arises a presumption that it must have resulted from some negligent act of omission or commission of the company or some of its employes; because, without some such negligence, it is very improbable that the accident would have occurred. That is the basis on which the presumption rests, and it stands as proof of the negligence until it is successfully rebutted.

It arises not from the naked fact that an injury has been inflicted, but from the cause of the injury, or from other circumstances attending it.

“It follows from what has been said that the learned judge of the Common Pleas erred in directing the jury to begin their consideration of the case with the fact established that the injuries were the result of the negligence of the defendant.

The decision in the above case is very able and convincing, but it is, in my judgment, fallacious and erroneous.

The common law obligation of a common carrier, is that he shall deliver at its destination the property received by him, without damage while in his hands, unless prevented by the act of God or the public enemy. Mr. Justice Wright, of the New York Court of Appeals, in Michaels v. N. Y. Cent. R. R. Co., 30 N. Y., 564, speaking of the “Act of God” as used in the case of carriers,

says: “All the cases agree in requiring the entire exclusion of human agency from the cause of the injury or loss, If the loss or injury happen in any way through the agency of man, it cannot be considered the act of God; nor even if the act or negligence of man contributes to bring or leave the goods of the carrier under the operation of natural causes that work to their injury, is he excused. In short, to excuse the carrier, the act of God, or res divina must be the sole and immediate cause of the injury. If there be any co-operation of man, or any

admixture of human means, the injury is not, in a legal sense, the act of God.” See, also, Proprietors, etc., v. Wood, 4 Doug., 287; Chicago, etc., R. R. Co. v. Sawyer, 69, III., 285; Caldwell v. N. J. Steamboat Co., 47 N. Y., 282; Bulkley v. Naumkeag, etc., Co., 24 How., 386; Hayes v. Kennedy, 41 Pa. St., 378.

The liability in respect to passengers is somewhat different. His undertaking amounts to no more than that so far as human foresight and care can reasonably go, he will transport them safely. He is not liable if injuries happen from sheer accident or misfortune which could not have been prevented

greatest degree of care, foresight or judgment. It was not claimed that the accident to McKenney was caused by the act of. God, and although there was no evidence to show where the missile came from, it was more rational to suppose that it was carelessly thrown by the fireman on the engine which was opposite the plaintiff at the time he was hit, than that it fell from the clouds or was the result of some natural cause. McKenney was seated in the passenger coach in the seat provided him by the defendant. He bad no say as to the mode or manner of running the train. He was as absolutely under control of defendant's servants as if he were a statue, and yet when injured under such circumstances, must he do more than to prove the fact and shuw the nature and extent of the injury? We think not. We think the learned judge of the Common Pleas was right iu saying: will begin their consideration with the fact established that the injuries were the result of negligence of the defendant.”

The traveling public believe that if injured while in the

by the


"The jury

course of transportation without any fault of their own, the common carrier is liable in damages unless he can show that the accident arose from natural causes or that it could not have been prevented by the exercise of the greatest vigilance, foresight and judgment. We think this is good law and that courts should. long hesitate before relaxing the rule in the slightest particular.

The basis of the rule which exempts a common carrier for liability for injury to a human being, under circumstances which would render it liable for injury to a domestic animal or for the destruction of a keg of beer or a barrel of whisky, can hardly be traced to a divine origin. There should be no difference in the rule respecting the obligation of the common carrier, whether the thing carried be freight or passengers, unless it be shown that the passenger injured did something which probably brought about or contributed to the injury. Chicago Law Journal.

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