Ahern v. Melvin
Ahern v. Melvin
Opinion of the Court
Opinion by
The only ruling of the learned court below which is assigned for error is the refusal to give a binding instruction in favor of the defendant. The contention of the appellant is that there was no evidence from which a jury ought to have been permitted to infer negligence on the part of defendant or his servants. The defendant was the proprietor of the Hotel Han
The plaintiff was passing along the side of Appletree street next to the defendant’s premises and was struck on the top of the head and seriously injured by a large paper bag partially filled with potato parings, cantaloupe skins and seeds and the skins of other vegetables. The plaintiff testified that the bag came from the iron balcony about twenty feet above the street; if this was so, it was the balcony from which a door led directly into defendant’s kitchen. Another witness testified that he saw the bag which struck the plaintiff come from that balcony, and that he believed it was thrown by a woman. His belief as to who threw the bag seems to have been a mere opinion, and was not competent evidence. But he gave the facts upon which that opinion was founded, and those facts were proper for the consideration of the jury. He testified that immediately after the bag came from the balcony he saw a woman, dressed as a servant and wearing an apron, run from the balcony into the building. This witness further testified that he saw standing upon this balcony at that time galvanized iron cans, such as are used for holding garbage. The testimony of the defendant and his witnesses established the facts that he was the pro
The object which struck the plaintiff undoubtedly came from the hotel of which the defendant was the proprietor, but the appellant contends that the evidence only established that it came from the upper part of the hotel and that it could not be definitely determined under the evidence whether the act, through which the plaintiff was injured, was that of a guest, the servant of a guest or a servant of the proprietor. Where it is a perfectly even balance upon the evidence whether the injury complained of has resulted from the want of care on the part of the defendant or the negligence of some person for whose act he is not responsible, the plaintiff’s case is not established. Where the effect of the evidence is merely to establish that there are two independent causes, either one of which may have been the proximate cause of the injury, the burden is upon the plaintiff to show that the cause for which the defendant is responsible was the one which produced the injury sought to be recovered for: Cotton v. Wood, 98 English Common Law Reports, 570; Boehm v. Bethlehem Borough, 4 Pa. Superior Ct. 389. In the present case, however, there was a
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- Negligence — Evidence—Burden of proof. Where it is a perfectly even balance upon the evidence whether the injury complained of has resulted from the want of care on the part of defendant or the negligence of some person for whose act he is not responsible, the plaintiff’s case is not established. Where the effect of the evidence is merely to establish that there are two independent causes, either one of which may have been the proximate cause of the injury, the burden is upon the plaintiff to show that the cause for which the defendant is responsible was the one which produced the injury sought to be recovered for. Negligence — Evidence—Burden of proof — Fall of heavy article into street. In an action against the proprietor of a hotel to recover damages for personal injuries, it appeared that the plaintiff while passing along the sidewalk of a street in the rear of the hotel was struck on the top of the head and seriously injured by a large paper bag filled with potato parings and the skins of other vegetables. Projecting from the second floor of the hotel, immediately above the point where plaintiff was struck, was an iron balcony which was part of a fire escape. The only entrance to this was from the defendant’s kitchen. There was an exit into afire tower, which did not open into the hotel at any point. Above the balcony there were other balconies at each floor of a similar character, entrances to which were from guests’ rooms. Plaintiff testified that the bag fell from the lowest balcony. Another witness testified that immediately after the bag came from the balcony he saw a woman dressed as a servant and wearing an apron, run from the balcony into the building, and that he saw standing on the balcony at that time galvanized iron cans, such as are used for holding garbage. There was evidence that no other persons had access to the balcony, except servants, and that servants were permitted at that time to pare potatoes on the balcony. Defendant testified'that servants were not permitted to throw anything from the balcony. Held that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.