Opinion
April 23, 1957.
May 27, 1957.
Negligence — Electricity — Supplier — Evidence — Circumstantial — Doctrine of exclusive control — Contributory negligence — Burden of proof.
1. In this action of trespass to recover damages for the total destruction by fire of the plaintiff's real estate, in which it appeared that the plaintiff presented circumstantial and expert opinion evidence that the fire was caused by excessive current entering plaintiff's premises over the defendant's wires; and the trial court charged the jury that if it found that the garage building was fired by excessive electrical current entering plaintiff's premises through defendant's wires, "then under such circumstances — and only under such a finding of fact — would there then arise a presumption that the supplier did not use due care, and the burden in that event would be upon the defendant to offer such explanation as will relieve it of responsibility"; and the jury found a verdict for the plaintiff, it was Held that (1) the court properly charged the jury as to the applicability of the exclusive control doctrine and (2) the court properly charged the jury that the burden of proving contributory negligence on the part of the plaintiff rests upon the defendant.
2. What the rule of exclusive control does in situations where it is applicable is to shift to the defendant the burden of coming forward with the evidence to establish his freedom from negligence; in such a situation the risk of non-persuasion is upon the defendant.
Before JONES, C. J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.
Appeal, No. 129, March T., 1957, from judgment of Court of Common Pleas of Erie County, Feb. T., 1955, No. 300, in case of Jerome E. McManus and Marion M. McManus, his wife, v. Pennsylvania Electric Company. Judgment affirmed.
Same case in court below: 8 Pa. D. C.2d 303.
Trespass for property damage. Before ROBERTS, P. J., specially presiding.
Verdict for plaintiffs; defendant's rules for judgment n.o.v. and for new trial refused and judgment entered on the verdict. Defendant appealed.
Frank B. Quinn, with him Quinn, Leemhuis, Plate Dwyer, for appellant.
James A. Quisenberry, for appellees.
The judgment of the court below is affirmed on the opinion of Judge ROBERTS, 8 Pa. D. C.2d 303.