Caffrey v. Philadelphia Rapid Transit Co. , 249 Pa. 364 ( 1915 )

Opinion by

Mr. Justice Elkin,

The plaintiff, a pedestrian, standing on the sidewalk where she had the lawful right to be, was struck by the rear end of a trolley car belonging to and operated by the defendant company, and sustained the injuries for which damages are sought to be recovered in this action. The accident occurred at the southéast corner of Eleventh street and Columbia avenue at which point plaintiff was standing waiting for the car to pass in order that she might cross the street. The car was running north on Eleventh street, but the rear truck took the switch at Columbia avenue and moved in that direction. In this situation the rear end of the car jumped the track, swung out over the sidewalk and injured plaintiff. Three witnesses testified that they had seen cars jump the track at the same switch on several different occasions prior to the happening of the accident in the present case. This testimony, taken in connection with all, the other circumstances, was sufficient to make out a prima facie case for plaintiff. We cannot agree with learned counsel for appellee that the burden was on plaintiff to affirmatively prove the particular act or acts of negligence which caused the car to jump the track in order to sustain a recovery under the facts of this case. From the fact that the car did jump the track at the switch, and that this same thing had occurred on several prior occasions, the jury might very properly draw the inference that a defective switch caused the accident. These facts were sufficient to make it incumbent on defendant to show that due care had been exercised in the operation of the car and the maintenance of the switch. The case at bar does not come within the rule of that line of cases, relied on by appellee, which requires the specific acts of negligence to be established by affirmative proof. There are many cases in which it is not required that the facts relied on to' show negligence be established by direct,and positive proof, and as we view it the present case belongs to that class. This court has frequently recognized the rule stated in cases brought before us for decision, as the following cases will demonstrate : Campbell v. Consolidated Traction Co., 201 Pa. 167; Booth v. Dorsey, 208 Pa. 276; Geiser v. Pittsburgh-Railways Co., 223 Pa. 170.

' The accident' was such ás in the ordinary "course of things would not have occurred if due care had been exercised and the facts established at the trial were sufficient to warrant an inference of the want of' reasonable care. The defendant company was therefore put on proof of such circumstances as to exculpate it from the charge of negligence. Whether it did exercise proper care in the operation of the car and the maintenance of the switch were questions of fact for the jury.

It is but just to the trial judge to say that in his opinion the case was for the jury, but he felt constrained to follow Zercher v. Rapid Transit Co., 50 Pa. Superior Ct. 324. The cases are not parallel on their facts, and in the present case the evidence shbwed that cars had jumped the same switch on prior occasions. This was sufficient to put defendant on notice of a defect in the switch and also to warrant an inference that the defective switch caused the accident.

Judgment reversed and a venire facias de novo awarded.