Opinion
November 27, 1929.
January 6, 1930.
Negligence — Instrumentality causing accident — Exclusive control — Province of court and jury — Pleading — Statement of claim — Affidavit of defense — Undenied averments — Admissions — Evidence — Act of May 14, 1915, P. L. 483.
1. The doctrine of exclusive control of an instrumentality causing an accident and fixing liability on the owner thereof, is applicable in Pennsylvania in those cases only where the evidence shows that the instrument was under the control of the injurying party to such an extent that, if due care had been exercised by it, the accident would not have occurred.
2. In such case, if no effort is made at the trial to exclude the possibility of some other agency having intervened and caused the injury, the case cannot be submitted to the jury.
3. In trespass against a telephone company for personal injuries, the plaintiff is not entitled to have her case go to the jury where her evidence was in effect that as she was walking on the sidewalk of a street she saw a hose, somewhat larger than a fire hose, extending from a near-by street manhole, around which a railing had been placed; that the hose lay half way across the crossing, close to the curb; that in attempting to step over this hose plaintiff placed her foot above it on the curb, when she felt the nozzle or coping strike her knee, so that she was knocked down and injured.
4. In such case, the evidence leaves open the reasonable possibility of the hose having been moved by some outside agency which due care on defendant's part could not have seen or prevented.
5. Where in such case plaintiff avers in her statement that "defendant was then engaged in making certain repairs to a telephone conduit at and about said manhole and for the purpose of said repairs and in the execution thereof defendant had caused the hose to be placed in such position," and no denial is made of such averments, in the affidavit of defense, the averments become, under the Act of May 14, 1915, P. L. 483, admissions identifying defendant with the offending instrument for purposes of trial.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Appeal, No. 287, Jan. T., 1929, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1927, No. 9171, for defendant n. o. v., in case of Catherine Devine v. Bell Telephone Company of Pennsylvania. Affirmed.
Trespass for personal injuries. Before BROWN, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff. The court entered judgment for defendant n. o. v. Plaintiff appealed.
Error assigned was judgment n. o. v., quoting record.
Thomas C. Egan, with him Wolf, Block, Schorr Solis-Cohen, for appellant.
Benjamin O. Frick, of Evans, Bayard Frick, for appellee.
Argued November 27, 1929.
This is an appeal by plaintiff from a judgment n. o. v. entered in favor of the Bell Telephone Company of Pennsylvania, defendant, in an action of trespass, instituted by Catherine Devine, to recover damages for personal injuries. Plaintiff alleged she had been injured by the negligence of defendant's employees under the following circumstances: As she was proceeding down the south side of Chestnut Street, Philadelphia, about to cross 38th Street, she saw a hose, somewhat larger than a fire hose, extending from a near-by street manhole, around which a railing had been placed. The hose lay half-way across the crossing, close to the curb, on the east side of 38th Street. In attempting to step over this hose, plaintiff placed her left foot above it on the curb, when, according to her testimony, she felt the hose jerk and the coupling, nozzle or "coping" strike her knee, so that she was knocked down and suffered severe bodily injuries.
Plaintiff averred in her statement of claim that "defendant was then engaged in making certain repairs or adjustments to [a] telephone conduit at and about said manhole and for the purpose of said repairs and in the execution thereof, defendant had caused [the] hose to be placed in [the] position" described. This was undenied in the affidavit of defense and, under the Practice Act of May 14, 1915, section 13, P. L. 483, 485, became an admission identifying defendant with the offending instrument for purposes of trial. Because of the Act of 1915, the doctrine of Buehler v. U.S. Fashion Plate Co., 269 Pa. 428, 433-34, urged by defendant, does not apply.
Plaintiff states in her brief that she relies on the doctrine of exclusive control, not on that of res ipsa loquitur; but the former doctrine has been applied in Pennsylvania in only those cases where the evidence showed the instrument to be under the "control of the injuring party" to such an extent that if "due care had been exercised" by it the accident would not have occurred: Fitzpatrick v. Penfield, 267 Pa. 564, 577, and cases there cited. Here, no effort was made at trial to exclude the possibility that some outside agency, such as another pedestrian or a passing vehicle, had come in contact with the hose and caused it to move to plaintiff's injury. In short, the circumstances of the present case leave open the reasonable possibility of the hose having been moved by some outside agency which due care on defendant's part could not have foreseen and prevented; whereas, in order to make a case for the jury, this element of uncertainty should have been removed: Booth v. Dorsey, 208 Pa. 276, 278; Fleccia v. Atkins, 270 Pa. 573, 576; Cain v. Booth Flynn, Ltd., 294 Pa. 334, 339.
Since plaintiff's proofs fell short of establishing defendant's negligence, discussion of the former's alleged contributory negligence is unnecessary.
The judgment is affirmed.