Mulligan v. Lehigh Traction Co.

On May 8, 1909, employees of the defendant company placed some iron rails on a vacant lot in the City of Hazleton. They extended out onto Eleventh street. On the evening of the same day that they were placed on the lot the appellant fell over them and was injured. In her statement of claim she averred that she fell over them while walking on Eleventh street, and the burden was upon her to establish this material averment, for if she fell over the rails while walking on the lot, there was no liability on the part of the defendant company for the injury she sustained. This is not questioned by her counsel. She was the only witness as to where she fell, and from her testimony it would have been impossible for the jury to have found where she did fall. Her conflicting statements are irreconcilable. It would have been but a mere guess if the jury had found that she fell on the street. As to this the learned trial judge correctly instructed the jury when he said, in directing them to find for the defendant: “Now, she is the only witness as to the place where she fell, a vital point in the case. The burden of proof was upon her to show where she fell and to show you that she fell within the boundaries of the street. Her testimony on that vital point is inconsistent and contradictory. In one breath she said that she was on the street, walking along the street, when she fell, but in the next breath she stated that she was on the vacant lot when she fell.” The authorities cited by counsel for appellant are not applicable, in view of the failure of the plaintiff to establish the fact upon which her right to recover depended.

Judgment affirmed.