#### Ebright *v.*Mineral Railroad & Mining Co.

In an action for damages for personal injuries caused-by the alleged negligence of the defendant, a mining company, in not providing a sufficient number of persons to manage cars run down an incline from a coal breaker, it appeared by the evidence that the cars run out at the time of the accident struck other cars which had had their brakes taken off by trespassers, and these latter cars ran against defendant and caused the accident. The court charged that negligence on the part of the company in not having more men to manage the cars would not make them liable if the injury would not have occurred but for the intervening negligence of a third party. The court further charged that knowledge that the brakes had been taken off several times before, by trespassers, did not make it incumbent upon them to examine if the brakes were on before running their cars down. Held., not to be error.

May 21, 1888.

Error, No. 14, July T. 1887, to C. P. Northumberland Co., to review a judgment on a verdict for defendant in an action of trespass on the case, by James Ebright against The Mineral Railroad and Mining Co., to recover damages for personal injuries, at Sept. T. 1882, No. 136. Trunkey, J., absent.

The amended declaration, being the only one printed, alleged, inter alia, that the defendant ran its cars over the siding of the defendant and the siding of the Northern Central Railway, without full and proper control thereof, and without having a sufficient number of competent persons in charge thereof, to run, manage and control the same, and at such a high and dangerous rate of speed, and so carelessly and negligently failed to brake, block and safely secure the said cars as they were then and there left standing upon said last mentioned siding, and see that the same were safely braked, blocked and secured, and so carelessly, negligently and unskillfully managed the same, that, by and through the negligence, etc., of the defendant, etc., run said cars, loaded as aforesaid, upon and over said siding, to wit., said siding belonging to said defendant, and said siding of said Northern Central Railway Co., and upon and against certain other railroad cars, then and thereupon said last mentioned sidings being and standing, with great force, etc., so as to carelessly cause the last mentioned railroad cars to run into a siding where the plaintiff was working and to strike a car on which he was working, throwing him down and injuring him, etc. The defendant pleaded not guilty. -

Lloyd Persing, a witness for plaintiff, being on the stand, the defendant made this offer, on the trial, before Rockefeller, P. J.:

The witness having stated the manner in which he run the cars down on the morning that it is alleged this accident occurred, the defendant’s counsel now propose to ask him whether he run the cars that morning according to the usual manner and custom of running them down for the purpose of connecting with the cars on the siding at the point of junction with the main line of the railroad. This, for the purpose of showing that the cars were run down with due and proper care and that he was performing his regular duty in the manner he always performed it and in a proper manner.

*127Counsel for plaintiff object to the question, 1, because it is not a cross-examination, the witness having been asked no questions on the part of the plaintiff as to the usual method of running these cars and coupling them on to those below, but simply how it was done the morning the accident occurred; 2, because it is not proper evidence, the only question in the case being, how the cars were run that morning, not how they usually run; the defendant cannot show that they run them in the usual manner and thereby argue that they run them safely and without negligence, that would be begging the question.

The Court: The defendant may showthat the cars'were run in the usual manner of running them and that such running them had been safe. Objections over-ruled, evidence admitted, and exception. [1]

Persing further testified in chief: “ When I struck them (the cars) they all started off for me; the brakes had been taken off the night before by somebody. . . . The brakes had been taken off the 25 or 30 cars that had been run down the day before, through the night; when those cars were put down there the day before they were not blocked;. I run them down and I put enough brakes on to hold them,.I think, without being blocked.” On cross-examination, the same witness said: “ I had been working there the day before and had run down those cars that were on the end of the siding that were struck first. ... I coupled them and braked them; braked them securely; left them perfectly safe.”

Persing was further asked the following question, on re-examination in chief: “ Q. Supposing they, the 25 or 30 cars, had been so securely blocked that they could not have moved without running over the blocks, instead of shoving, without running over these blocks, say you had 6 inch blocks under them, or what are proper and sufficient blocks to hold them, what would have been the result when you struck them as you did that morning when you went to make the coupling? A. It would have shoved them off the track.”

Other witnesses testified that it was usual and necessary to block the cars to make them safe, when left standing.

Joseph Keefer, a witness for plaintiff, being on the stand, counsel for plaintiff proposed to show by the witness that, upon several occasions, cars broke loose and run out from the Mineral Railroad and Mining Company’s siding down on to the Trout Run siding, for the purpose of showing that the Mineral Railroad and Mining Company did not use ordinary care; that the witness Persing was mistaken when he said they never ran away; also for the purpose of showing that the company and their employees had knowledge that these cars had run away from them and for the purpose of charging the defendants with more care than they were exercising.

Defendant’s counsel object, 1, because it is irrelevant; 2, because the plaintiff cannot contradict the testimony of his own witness *128(Persing); 3, because it has no tendency to contradict anything that was stated by Persing and has no tendency to show want of care at the time of the alleged injury set forth in plaintiff’s declaration; 4, because it is not proposed to show in what manner this alleged running away of the cars occurred, and, unless that is done, it cannot have any possible bearing upon the question of the alleged running away at the time the accident is alleged to have occurred or any carelessness or negligence connected therewith; 5, because it is not proposed to show that the running away, about which the inquiry is proposed to be made, was from a point upon -the Mineral Mining and Railroad Company’s siding at which the cars were under the control of that company; from all that appears from the question it may have been after the cars were delivered into the hands of the Northern Central Railway Company.

The Court: To make the fact that cars previously escaped evidence of knowledge on the part of the defendant, it must be shown that they escaped under the same conditions or circumstances under which they escaped at the time of the injury complained of in this case. Objections sustained, evidence rejected, and exception. [2]

The charge of the Court was as follows: “.This is an action brought by James Ebright, the plaintiff, against the Mineral Railroad and Mining Company, defendant, to recover damage Tor an injury sustained by the plaintiff by reason, as he alleges, of some act of negligence on the part of the defendant. When injuries are occasioned by one person to another, by reason of his negligence, the law gives an action, a right to recover damages. Negligence is the essence of the claim or right of action. Negligence is defined to be the want of care under the circumstances. Negligence is never presumed, every person is presumed to act carefully and to transact his business in a careful manner, and it is not to be presumed that he does otherwise, but it must be shown. [The party alleging negligence must prove it. The presumption is that there was no negligence until the party, claiming that there was, shows it, by competent authority.] [1]

“ Now there are some principles of law that are applicable to this case, to which I will refer further on in my charge. For the present, I will merely call your attention to the manner and the circumstances under which these parties were doing business at the time of the alleged injury. In the month of July, 1880, if you believe the evidence, there existed, and still exists, a colliery, called the ‘ Cameron Colliery,’ at which the defendant, the Mineral Railroad and Mining Company, were engaged in mining, preparing and shipping coal. That they were there in the lawful pursuit of their business, is not questioned or disputed in this case. From this colliery, there extended westward, a siding, called the ‘ Cameron siding,’ and that is the siding that was used for the purpose of taking cars out from beneath the breaker after they were loaded, and dropping them down to the western terminus of this siding, where *129they were left standing until the Northern Central Railway Company saw proper to take them out. From the terminus of this siding, there extended another, called the ‘ Trout Run siding,’ which siding belonged to the Northern Central Railway Company. This latter siding extended several hundred feet and then run into the main track of the Northern Central Railway Company’s road. Near that point there was a switch that led upon a siding called ‘ Beury’s siding,’ which was put in there by the railroad company, not the defendants in this case, for Mr. Beury. From the coal breaker down to the ‘ Beury siding,’ there was a descending grade, and cars were run upon both sidings by gravity, and there seems to have been a continuous rail or track from the coal breaker down to the ‘ Beury siding,’ so that, when cars were started at the coal breaker, they would run on down without turning any switch until they got to the switch at the ‘ Buery siding.’ If the switch there was open, they would run in upon that siding; if not, they then would run out upbn the main track of the Northern Central Railway Company by means of what the witnesses call a spring switch. Upon and along these two sidings, business was transacted by the defendant, the coal company, more especially at the breaker, but sometimes further down on the siding of the Northern Central Railway Company; that, however, was only occasional and by the permission of the company at the exceptional times when the coal company’s siding was full. Then, along this other siding of the company, there was a stock-yard used for the purpose of stocking coal; the ‘ Beury siding’ was also used by Mr. Beury for a time, and afterwards by the firm of Culp & McWilliams, who were using it on the day of the alleged accident, for business purposes. So that you see that these sidings were all there for the use of these different parties in transacting their lawful business.”

“ The plaintiff alleges in this case, that some day, about the latter part of July, 1880, the defendant was engaged in shipping coal; that, by its servants, coal cars were loaded and run out from the breaker to a point called the ‘ summit ’ or top of the grade of the siding of this *‘*Cameron Colliery.’ I hardly know how it could be called the summit, for the evidence is that there was a slight grade, clear from the breaker down, but not sufficient to run the cars by gravity. The plaintiff alleges that there was, at the time of the accident, some twenty-five or thirty railroad cars loaded with coal standing at the western terminus of this siding; that the servant of defendant carelessly and negligently run cars, that were loaded up at the breaker, down the grade of the siding until they got to the 25 or 30 cars that were standing there; that there they struck those cars causing them to move on down the siding of not only the defendant but also of the railroad company, called the ‘ Trout Run siding,’ where they struck another train of cars and caused them to move on down to the ‘ Beury siding ’ where the plaintiff was standing upon a car, lawfully engaged in loading lumber. Now, I am of *130opinion, thát it is a question for the jury to determine whether the eight or ten cars referred to by the witness, Lloyd Persing, were carelessly run down against the first cars standing upon the siding, to-wit: the 25 or 30 cars; and whether he thus carelessly and negligently caused them to run away, down the siding, so swiftly as to cause the injury that the plaintiff sustained. But, in determining that question, the jury must carefully weigh the testimony on both sides, and, if the weight of the evidence shows that there was no negligence on the part of the defendant or its servant, then the plaintiff ought not to recover. Perhaps very much may depend upon what the jury find from the testimony of this young man Lloyd Persing. He was the only person there that saw the cars run down the breaker to the western end of defendant’s siding whetre they struck the 25 or 30 cars that were standing there; no eye witness, no one was present but he who saw this operation until the 25 or 30 cars were struck.' Then you have the testimony of a witness who was several hundred feet upon the bank whose attention was called to the bumping of the cars. Pie says that he was upon the bank, and on a still summer morning they could hear every noise in the valley below and he heard the bump, and he is the only witness that heard that, so far as I recollect. So that the testimony of Lloyd Persing is important testimony in this case. It is true that a party calling a witness may allege that the facts were different from those testified to by that witness. A party who calls a witness, however, is presumed to give him credit. He brings him before the court and the jury with the understanding that he considers him worthy of credit and belief. But still, whilst that is so, and whilst he is not. permitted to call witnesses to impeach the testimony of his own witness, yet, if the testimony of that witness or the other evidence in the case shows that that witness was mistaken, there is no rule of law that prevents the party calling him from asking that his case may be decided upon the facts as they really exist. Then you have the testimony of this young man, Persing, called by the plaintiff himself, who testified to the loading of the cars at the defendant's breaker. You have it in evidence by himself and by a number of others that this young man had been engaged there in the performance of that very duty for a period of two years, or thereabouts, and that during all that time he had safely performed the work of taking the cars down from the breaker to the western end of the siding; that, from time to time, he had taken the cars down and safely coupled them upon the cars standing upon defendant’s siding that he had taken down previously. So that you will determine whether he was a person skilled and competent to do and transact the kind of business he was employed there to do by defendant. If the defendant had an incompetent person there, that perhaps might be, and would be, a matter for the serious consideration of the jury. For it is also an important matter in cases of this kind to show that the person who it is alleged committed the negligence was a person *131competent and fit to transact the business. You will decide for yourselves whether young Persing had such experience as rendered him competent to do the kind of work he was engaged in performing. [Then you have him testifying that he carefully run the eight or ten cars down that morning; that the brakes were all in good condition; that he had perfect control of the cars until they arrived down at the place where the twenty-five or thirty were standing; that when he came up to them and bumped against them he got down upon the bumper and there made his coupling all safely and right.] [8]

“ Now, gentlemen of the jury, you heard a great deal of testimony in relation to the number of men that the company ought to have employed in order to safely do the business of running loaded cars down from the breaker to the western end of this siding and in dropping other cars down to couple upon them. Some of the witnesses testified that it would take two men to drop down eight or ten cars with reasonable care and safety. Whilst, on the other hand, you have the testimony of a number of witnesses who say that one was sufficient. You have the testimony of several who actually performed the work who say that the grade at that place was a slight one, some fifty feet to the mile perhaps, and that there was no difficulty in performing this work with one man. You had the testimony of one young man sixteen years of age who has been performing that particular business for a considerable length of time and without accident and doing the work safely. Although you may come to the conclusion that the defendant ought to have had more than one man there to do the work safely, yet, we cannot see that that should make any difference if in fact the cars were run down carefully and safely by the man who performed the operation at the time of the alleged accident. If young Persing did the work carefully and safely, then, of course, no accident did occur in consequence of the company not having more men there.

“ The plaintiff alleges, as you learned by the argument of his counsel, that these cars were run down carelessly and negligently, and so unusually fast, so improperly, as to cause the 25 or 30 cars to move off and to run down the sidings and cause the injury to the plaintiff. That is a question that I propose to leave to you to determine from the weight of the evidence in the case. [But if the evidence shows you that the cars were carefully run down, without negligence on the part of the defendant’s servant, Lloyd Persing; that, when they got to the place where they struck the 25 or 30 cars, they all then moved down the siding, if you find that the running of the cars down from the breaker to this point, where the 25 or 30 cars were struck, was done in a careful manner and without negligence, and you also find that the 25 or 30 cars that were standing there at that time were properly coupled and braked so as to be reasonably secure, then we think that the plaintiff has no right to complain in this case.] [12] That, however, is a matter for you to determine, and [we say to you that if those cars were properly *132coupled and braked, as stated by Persing, at any time previous to the time that he run the 8 or io cars down against them, then the plaintiff has no cause to complain, if the brakes were taken off by some trespasser or wrong-doer going there upon the defendant’s siding where the cars were standing.] [9] That is an important question for the determination of the jury. The plaintiff’s counsel contend that the striking of these 25 or 30 cars was with so much force as to cause them to run down this siding notwithstanding they were all braked and properly secured. You have the testimony of young Persing that, when he run the 25 or 30 cars down there, he coupled them properly and braked them so that they were safely secured. You will determine from his evidence, taking all that he said on the subject, whether the running down of the 8 or 10 cars against the 25 or 30 caused the brakes to loosen, or whether the brakes had been taken off by some other party not one of the defendant’s servants, and there is no evidence in the case that any of the defendant’s servants did take them off. The plaintiff contends that they were not taken off but that they were bumped off Then were they taken off? You have the testimony of Persing on that question, and he says: ‘ Q. Go on and state what you did that morning, how the cars came to run away from you and all about it ? A. I helped load some under the breaker there and dropped them down part way, started them off to go to take them down and couple them up with the rest. When they struck them they all started off for me; .the bralees were taken off the night before by somebody, and they started off and run down into the “Trout Run siding” and started them off yet. That was the first trip in the morning.’ Afterwards he said: ‘ Q. You judge the brakes were off for the reason that they began to move when you struck them with these 8 or 10 cars from above? A. Yes sir. Q. That is the only reason? A. I went down afterwards and saw that the brakes were off?

“ It is a rule of law that, even where a person is negligent but his negligence is not the cause of the injury and the injury would not have occurred if it had not been for the act or conduct of some other party, then such person is not liable. For instance, [if you should find that these cars were run down by young Persing, and that it was negligence for the company not to have more men there, still, if you find that the injury would not have occurred if the brakes had not been taken off by some third party, not the defendant or its employee, then we say to you that the plaintiff has no cause to complain, even if you should find such negligence. The plaintiff contends that this is not a proper, construction of the law but we are of opinion that it is.] [9] The plaintiff relies upon the case of the New York, Susquehanna and Western Railroad Company, decided in the state of New Jersey, which was a case where a railroad company, engaged in the transportation of passengers, and where cars were daily and hourly passing loaded with human freight, had constructed a siding and connected it with its passenger rail*133road track in such a manner that the siding inclined towards the railroad, and cars standing upon it would naturally run down upon the main track in case they were not properly secured, or, if secured, the means of securing them were taken away by some outside party. It was there held, by the supreme court of New Jersey, that in such case it could not be considered that the company was irresponsible as a matter of law. But, on examination of the opinion of the court, it seems that the question as to whether, if the cars had been properly secured, and they had been loosened and removed to the track by the intentional, wrongful act of a stranger, was not raised in that case. I do not consider that a parallel case with the one now on trial. [Here were these parties, the plaintiff and defendant, engaged in doing business upon the side tracks constructed and used there for the purpose of transacting business, and I am of the opinion, and so instruct you, that, if you find from the evidence that the 25 or 30 cars that were standing at the western terminus of defendant’s siding were properly secured and made reasonably safe, that was all the defendant was bound to do; that if a third person, a wrong doer, took off the brakes or other contrivance used for the purpose of securing them, and that that was what caused the injury to the plaintiff, the defendant is not responsible.] [10]

“ Another question then is raised, and it is an important one, and about which I have had some little difficulty in my mind during the trial of the case. [It is contended on the part of the plaintiff that it was the duty of the defendant, or its servants, knowing that on several previous occasions the brakes had been removed from the cars standing upon this western terminus, to go there and see that the brakes had not been removed before attempting to run cars down from the breaker and couple upon them. During the trial, I was at one time inclined to think that such was the case, and that I would so instruct you, but after hearing the argument on both sides and an examination of the authorities, I have come to the conclusion that if the 25 or 30 cars standing there at the western end of the defendant’s siding were properly coupled and braked by the defendant’s servant at the time they were taken there, it was not their duty to go there again to see whether they were properly braked or whether the brakes had not been removed by some vicious person, trespasser or wrong-doer. In other words, that' the defendant was not bound to presume that any wrong-doer would go there upon its track and take off the brakes, simply because they. had, on some prior occasion, been so taken off. For example, and to show you what I mean, suppose the owner of a mill has a tail race to lead off the water from the mill for a distance to some outlet, which is so constructed that the water would, by a break in the bank or other place along it, overflow some other man’s ground or his dwelling or do him great injury. If, on some prior occasion, it was found that some wrong-doer or trespasser, had gone there and made an *134opening in the bank so as to leave the water out and do an injury to the adjoining owner of property, that would not impose upon the owner of the mill, the duty, everytime that he desired to open his gates and set the mill in motion, of going down along his race to see whether some trespasser or wrong-doer had been there and opened the bank in such a manner as to leave the water out and do an injury. If, however, such bank was in a dangerous condition, and on prior occasions the water had broken through and was liable to break through again, then I would say it was the duty of the owner of the mill, every time that he intended to turn the water on which would run down the race, to go down there and see that it was all in a sound condition. But he is not bound to go down there every time to see whether some trespasser, or some outside party has been there and committed an act that would cause an injury to another person by means of the water escaping. So that we think, in this case, as these sidings were not regular railroad tracks, used for the transportation of persons or property, but merely for business purposes, that all that was required of the person doing business at the upper part was reasonable and ordinary care. In this case, if the defendant had the cars reasonably secured, if there was no negligence in securing or coupling or breaking them or in running the cars down and coupling to those standing below, as testified by young Persing, then we can see no reason why the defendant should be compelled to pay damages.

“ If the law was not as I have just stated it, then it seems to me that it would be practically saying to these defendants that they could not do business there at all. To say that, if any third party came along and turned off their switches or other appliances by which they secured their cars upon their track reasonably and safely, they would still be liable to damages in court, would be, in my mind, unjust and wrong.] [n]

The plaintiff presented, inter alia, the following point:

*“4.*If the jury believe from all the evidence in the case that the brakes had been, on several occasions prior to this accident, taken off of cars standing on defendant’s siding over night, and that this was known to defendant’s servants before they ran the cars down which occasioned the accident, then it is a question for the jury to decide whether it was not negligence to run the cars in question down against the cars standing in the lower end of the siding of defendant’s without first seeing that the brakes on said cars there standing were properly set, and the said cars safely braked. *Ans.*If it is the intention, and I take it that in substance it is, to ask the court to charge that, if the brakes had been, on former occasions prior to the accident, taken off the cars standing on defendant’s siding by some trespasser or wrong-doer, or other persons not the defendant’s servants, this being known to the defendant’s servants before they ran the cars down, is evidence of negligence from which the jury may find that it was negligence to run the cars against the *135cars standing on the.lower end of the defendant’s siding without first seeing that the brakes on the cars there standing were properly-set and safely braked, even if they hád been properly set and safely 'braked by the defendant’s servant before he ran the'cars down, I do not charge you as requested in this point. Under the circumstances of this case, the purposes and uses of the railroad sidings occupied and used by the different parties for business purposes, I am of opinion that, if the defendant’s servant properly and safely braked the defendant’s cars at the end of the siding, so that it was reasonably safe to run other cars down to them and couple them on, he was not bound to anticipate the possible act of a wrong-doer in taking the brakes off, even though such a thing had occurred on several occasions before, and I refer you to what I said in the general charge.” [3] ‘

The defendant presented, inter alia, these points :

“ 2. The plaintiff, having shown by witnesses called by him, whose testimony stands uncontradicted, that the cars were taken by the defendant’s agent, Lloyd Persing, down from the colliery, carefully, and evidently under the perfect control of said agent, and that they did not come in contact with the cars at the bottom of the grade with any undue or unusual force, and that he carefully and properly coupled the draft of cars taken down by him, and that he properly and securely braked and secured the cars at the bottom of the grade when he placed them in position the day before, has failed to establish the acts of negligence charged in his declaration, and has shown conclusively that no such acts of negligence as therein charged were committed by the defendants. *Ans.*I cannot charge you as requested in this point, as a matter of law; but if, from the testimony of these witnesses, you find the facts stated in the point, then it is correct, and in that case I charge you that the plaintiff has failed to establish the acts of negligence charged in his declaration, and cannot recover.” [4]

“ 3. The plaintiff, having shown, by testimony which has not been contradicted, that the cars at the bottom of the grade were securely braked by defendant’s agent the night before, when they placed them there in the usual course of business, to be removed by the Northern Central Railway Company, and, further, that, during the interval between the time they were so deposited there and the time when he coupled to the said cars, the cars brought down by him, the next morning, that the brakes had been taken off by other parties; he, the plaintiff, has fully shown that the defendant was not guilty of any of the acts of negligence complained of in the plaintiff’s declaration in relation thereto. *Ans.*If you find from the evidence the facts stated in this point, it is correct and I charge you as requested.” [5]

“ 4. The safe condition in which the defendant left the train of cars at the bottom of the ‘ Cameron siding ’ the evening before the accident, as shown by the uncontradicted evidence in the cause, was *136a full and complete performance of the duty of the defendant in relation to the same, and there was no duty resting upon the defendant to anticipate any wrongful acts of others, or trespassers, or interference with the said cars by other parties, and the defendant was not bound to take any precautions against such acts, and, inasmuch as the plaintiff has not shown any other act or cause which could have contributed to the accident and injury to the plaintiff, the verdict must be for the defendant. *Ans.*If you find from the evidence that the defendant left the train of cars at the bottom, of the ‘ Cameron siding ’ the evening before the accident in a safe condition, and if the plaintiff has not shown any other act or cause which could have contributed to the accident and injury to the plaintiff, I charge you as requested in this point.” [6]

Verdict and judgment for defendant.

*The assignments of error*specified, 1-2, the rulings on the evidence, quoting the bills of exceptions, as above; 3, the answer to plaintiff’s point, quoting the point and answer; 4-6, the answers to defendant’s points, quoting the points and answers; and, 7-12, the portions of the charge within brackets, quoting them, as above.

*J. Nevin Hill*and *C. R.*Savage, with them *George Hill*and *P. A. Mahon,*for plaintiffs in error.

To permit the witness to testify that he ran the cars in the usual manner of running them, and such running them had been safe, was not competent proof that the cars were run safely on the morning of the accident. The effect of the admission of this incompetent evidence was to mislead the jury into an irrelevant inquiry and the error was not, nor could it afterwards, have been, cured. Cummings *v.*Williams-port, 84 Pa. 472; Reineman *v.*Blair, 96 Pa. 155.

When an act or omission of defendant is proved, whether it be actionable negligence, is to be determined by the character of the act or omission, not by the defendant’s character for care or caution. Hays *v.*Millar, 77 Pa. 238.

The court ignored the whole question of the necessity for blocking. The charge withdrew this question from the jury and that is ground for reversal. Bisbing *v.*Third Nat. Bk., 93 Pa. 79; Norton *v.*Lehn, 39 Leg. Int. 402 ; Oram *v.*Rothermel, 38 Leg. Int. 459.

The injury complained of in this case was the natural and probable consequence of defendant’s neglect to inspect the cars standing on the grade on the morning before it began to add to the train, such consequences as under the circumstances of the case might and ought to have been seen by the defendant as likely to follow from such neglect. The question of defendant’s negligence was for the jury. Hoag *v.*R. R., 85 Pa. 293; R. R. *v.*Kerr, 62 Pa. 353; and R. R. *v.*Hope, 80 Pa. 373; Lancaster *v.*Kissinger, 1 Penny. 250; Pa. R. R. *v.*Coon, m Pa. 430. The maxim, sic utere tuo et alienum non laedas, applies. Linch *v.*Nurdin, 1 Q. B. 35; Ulidge *v.*Goodwin, 5 C. & P. 190; Welch *v.*Lawrence, *1372 Chit. 262; Fletcher *v.*Rylands, L. R. 1 Ex. 265 ; Clark *v.*Chambers, 3 Q. B. Div. 327; Henry *v.*Dennis, 93 Ind. 452; Woodward *v.*Aborn, 58 Am. Dec. 699; s. c. 35 Me. 271.

When an accident is one which would not, in all probability, happen if the person causing it was using due care, and the actual machine causing the accident is solely under the management of the defendant, the mere occurrence of the accident is sufficient prima facie proof of negligence to impose upon the defendant the onus of rebutting it. Addison on Torts, § 33 ; Wilkie *v.*Bolster, 3 E. D. S. (N. Y.) 327; Ware *v.*Gay, 11 Pick. 106; Boyce *v.*California Stage Co., 25 Cal. 460; Fairchild *v.*Same, 13 Cal. 599; Dawson *v.*Manchester R. R., 5 L. T. (N. S.) 682; Feital *v.*M. R. C., 109 Mass. 398; Jackson *v.*C. *Sc*N. W. Co., 31 Iowa, 176; Daniel *v.*Metropolitan Ry., L. R., 3 C. P. 216.

The court was in error in ruling as a matter of law that reasonable care had been exercised by the setting of the brakes the day before the accident. Daniel *v.*Metropolitan Ry., L. R. 3 C. P. 216; Smith *v.*N. Y. S. & W. R. R., 46 N. J. L. 7; s. c. 18 Am. & Eng. R. R. Cas. 399.

In case of great danger the rule is, great care and caution will be but oi'dinary care. Brown *v.*Lynn, 31 Pa. 510; West Chester & P. R. R. *v.*McElwee, 67 Pa. 311; Oil City Gas Co. *v.*Robinson, 99 Pa. 1; McGrew *v.*Stone, 53 Pa. 436.

It should certainly have been left to the jury to say whether the evidence, as stated in the portion of the charge assigned, showed ordinary care. P. & R. R. R. *v.*Hummell, 44 Pa. 375; L. & B. R. *v.*Chenewith, 52 Pa. 382; Pa. R. R. *v.*Hope, 2 W. N. C. 385; Leishmann *v.*London, Brighton & S. C. R. R., 23 L. T., N. S. 712; McKee *v.*Bidwell, 74 Pa. 218; West Chester & P. R. R. *v.*McElwee, supra; Hydraulic Works *Co.v.*Orr, 83 Pa. 332; Crissey *v.*H. M. & F. P. R., 75 Pa. 83; P. & R. R. R. *v.*Heil, 5 W. N. C. 91; Neslie *v.*S. & T. S. P. R., 4 Cent. R. 699; L. V. R. R. *v.*Greiner, 4 Cent. R. 898; Smith *v.*N. Y., S. *8c*W. R. R., 18 Am. & Eng. Ry. Cas. 399; C., C. & C. R. R. *v.*Crawford, 24 Ohio St. 631; Sullivan *v.*P. & R. R. R., 30 Pa. 234; Stout *v.*Sioux City & P. R. R., 11 Am. L. Reg. (N. S.) 226; Fairbanks *v.*Kerr, 70 Pa. 86; West Mahanoy *v.*Watson, 112 Pa. 574; Schilling *v.*Abernethy, 112 Pa. 437-

*W. H. M Oram,*with him *J. B. Packer,*for defendant in error.

—The entire purpose of the plaintiff’s testimony was to show that the cars left standing on the coal company’s siding were not properly secured, which is nowhere charged in the declaration, and therefore we had no notice of such charge. If this is so, then the only charge left to be considered would be whether the defendant failed to run the cars down from the breaker with proper care, or whether it was done negligently. The plaintiff failed to show this, and the court should have directed a verdict for defendant.

*138Where facts have not been shown from which negligence may reasonably be inferred, they should not be submitted to a jury to infer, arbitrarily and without evidence, that there was negligence. P. & R. R. R. *v.*Yeager, 73 Pa. 121; P. & R. R. R. *v.*Heil, 5 W. N. C. 91; Clark *v.*P. & R. R. R., 5 W. N. C. 119; P. R. R. *v.*Fries, 5 W. N. C. *545;*Goshorn *v.*Smith, 92 Pa. 438.

Under the evidence, this case should not have been left to the jury at all. Howard Ex. Co. *v.*Wile, 14 Pa. 201; Hoag *v.*L. S. M. & S. R. R., 4 W. N. C. 561; 85 Pa. 293; P. & R. R. R. *v.*Heil, 5 W. N. C. 89; West Mahanoy Twp. *v.*Watson, 112 Pa. 574; R. R. *v.*Kerr, 62 Pa. 353.

Whether a given state of facts, admitted or proved, constitutes negligence, is generally a question of law to be declared by the court. Catawissa R. R. *v.*Armstrong, 49 Pa. 186; P., W. & B. R. R. *v.*Stinger, 78 Pa. 219; Gerety *t.*P., W. & B. R. R., 81 Pa. 274; P. & R. R. R. *v.*Hummell, 44 Pa. 377; Brown *v.*Lynn, 31 Pa. 510; Reeves *v.*R. R., 30 Pa. 454.

The defendant was not bound to anticipate and provide against the unlawful trespasses of wrong-doers upon the cars. P. & R. R. R. *v.*Hummell, 44 Pa. 377; B. & Ohio R. R. *v.*Schwindling, 12 W. N. C. 349; P. & Ohio Canal Co. *v.*Graham, 63 Pa. 290; Blair *v.*Pelham, 118 Mass. 420; Wharton on Negligence, I54etseq.; Daniells». Potter, 4 C. & P. 261; s. c. 19 E. C. L. R. 262.

The natural consequence of running the cars down from the breaker was the stopping of them by the cars which had been secured below.

Even the natural and probable consequences of a wrongful act or omission are not in all cases to be charged to misfeasance or nonfeasance. The inquiry must always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury. Milwaukee & St. Paul R. R. *v.*Kellogg, 94 U. S. 469; Township of West Mahanoy *v.*Watson, 112 Pa. 574; Hoag *v.*L. S. & M. S. R. R., 85 Pa. 299; Wharton on Negligence, § 134; Daniells *v.*Potter, 19 E. C. L. R. 262; Carter *v.*Towne, 103 Mass. 507.

If the negligence of the defendant would not have caused the injury, but for the intervening negligence of a third person, the defendant will not be liable. Carter *v.*Towne, 103 Mass. 507; Hofnagle *v.*R. R., 55 N. Y. 608; Parker *v.*Cohoes, 10 Hun, 531; P. 6 Ohio Canal Co. *v.*Graham, 63 Pa. 290; Oil City & Petroleum Bridge Co. *v.*Jackson, 17 Pitts. L. J., N. S. 105.

The plaintiff failed to show that the defendant, as miners and shippers of coal at the Cameron colliery, owed any duty to the plaintiff, who was engaged upon a portion of the railroad not connected with the defendant’s siding, or in any manner under the defendant’s control. Kahl *v.*Love, 8 Vroom, 5 ; Wharton on Negligence, § 43 5, et seq. If the defendant owed no such duty, then it co uld not be held liable. If it did, it must be as operators of the “ Trout *139Run siding,” connecting with the *“*Beury siding,” and as being engaged in running trains thereon as a railroad company in transporting coal thereupon. There being no evidence of wanton acts of carelessness on the part of the defendant, or its agents, the plaintiff, being by his own testimony a fellow-employee with Lloyd Per-sing and other employees of the defendant, cannot recover. Cummings *v.*Pittsburg, Cin. & St. L. Ry., 92 Pa. 82.

It was of no importance to refer to the blocking of cars. The plaintiff’s counsel evidently so regarded it, as they did not ask the court to do so, and it is wild to say that the charge was misleading for this reason. The two authorities cited are not in point and have no application here. There is a perfect torrent of authorities from Lilly *v.*Paschal, 2 S. & R. 394, to Sayer *v.*Schroeder, 2 Penny. 79, which hold that an omission to charge upon a particular point for which there is no request cannot be assigned for error. See, also, Horton *v.*Coal Co., 2 Penny. 48.

The court will not reverse for an immaterial error. Heysham *v.*Dettre, 89 Pa. 506; Galbraith *v.*Zimmerman, 39 Leg. Int. 357.

If the charge, taken as a whole, fairly leaves the question of fact to the jury, it is sufficient. Reese *v.*Reese, 90 Pa. 89.

It seems to us that this attack upon isolated sections of the charge deserves the censure administered in Reeves *v.*D., L. & W. R. R., 30 Pa. 460.

The burden of proving want of ordinary care rests on the party alleging it. Kingston Twp. *v.*Gibbins, 18 W. N. C. 334; Brown *v.*Gilmore, 92 Pa. 40.

The burden of proving the defendant’s negligence affirmatively is on the plaintiff. Dougherty *v.*Frankford & Southwark Pass. Ry., s W. N. C. 14; P. *8c*R. R. R. *v.*Heil, 5 W. N. C. 91; Mulhair *v.*West Phila. Pass. Ry., 5 W. N. C. 190; Whitaker *v.*D. *8c*H. Canal Co., 87 Pa. 34; Smith *v.*N. C. Ry., 1 Pears. 243; Baker *v.*Fehr, 97 Pa. 70; Reading & Columbia R. R. *v.*Latshaw, 93 Pa. 449; Federal St. & Pleasant Valley Ry. *v.*Gibson, 96 Pa. 83.

If there is no conflict of testimony, the question of negligence may be determined by the court as one of law. Gramlich *v.*Wurst, 86 Pa. 74; Harrisburg *v.*Saylor, 87 Pa. 216; Pa. R. R. *v.*Freis, 87 Pa. 234; King *v.*Thompson, 87 Pa. 365 ; Nagle *v.*Allegheny Valley R. R., 88 Pa. 35 ; Goshorn *v.*Smith, 92 Pa. 435 ; Jennings *v.*Pa. R. R., 93 Pa. 337; Township *v.*Watson, 112 Pa. 574; Stout *v.*R. R., 11 Am. L. Reg., N. S. 226; Gillespie *v.*McGowen, 100 Pa. 144; Gramlich *v.*Wurst, 86 Pa. 74; Fairbanks *v.*Kerr, 70 Pa. 86.

The following additional authorities were cited by the defendant in error, to show that the defendant was not liable for the unlawful acts of strangers: Joy *v.*Winnisimmet Comp., 114 Mass. 63; Hewitt *v.*Flint & P. M. R. R. (Mich.), 34 N. W. 659, 11 Western R. 148; Harris *v.*R. R., 13 Fed. R. 591; Bowen *v.*N. Y. Central R. R., 18 N. Y. 408; 1 Addison on Torts, Wood’s Ed. 575 ; Splittorf *v.*N. Y., 10 Cent. R. 699.

*140Oct. 1, 1888.

Per Curiam,

It was undoubtedly a question for the jury to determine whether or not the accident, on which this suit was based, was caused by the defendant’s agents. If they were not negligent, if the damage resulted from the act of a trespasser, of which these agents had no knowledge, clearly the company could not be held. Nor was the defendant bound to anticipate a second or third trespass on its property because there had been one, two or more previous trespasses; much less had it reason to suppose that it could be held liable for injuries resulting to third persons from such unlawful acts. These are propositions that are too well settled for discussion; they were properly disposed of in the court below; none of the exceptions can be sustained; in all particulars the case was well tried, and the verdict is sustained by the evidence.

Judgment affirmed.

Errata. — Assignments of error, designated No. i, on page 128, should be No. 7. Assignment of error designated' No. 9, at the bottom of page 132 should be No. 10, and the last sentence should be omitted from these brackets. Assignment No. 10 is completed on page 133.