#### Pennsylvania Telephone Co. *v.*Varnau.

In an action for damages for alleged negligence of a telephone company, in allowing a wire to sag over a public highway, whereby a driver with a loaded wagon was caught and injured, it is not error to charge that, if the driver was placed in a dangerous position by the wire and he exercised such caution as a prudent man would have exercised under the circumstances to extricate himself, that is all that could be required of him ; and, although he selects a method which was not the best and which, if he had time to consider, he might not have selected, the law will not impute to him contributory negligence so readily as if he had time to choose with judgment.

The burden of proof of contributory negligence is upon the defendant; the plaintiff is not bound to prove affirmatively, as part of his case, that there was no contributory negligence.

No presumption of negligence on the part of the plaintiff will be raised by the fact, proved by the plaintiff, that other men, with loaded wagons equally high, passed under the wire on the same road without injury.

On the trial, the plaintiff offered evidence to prove how high the wire was a few days previous to the accident; also, that the company, shortly after the accident, changed the poles and increased the height of the wire. This evidence was objected to, and its admission assigned for error, but without quoting the evidence. *Held*to be no ground for reversal.

The measure of damages, in the charge to the jury on the points, in this case, was held to be correct.

May 8, 1888.

Error, No. 34, July T., 1888, to C. P. Lancaster Co., to review a judgment on a verdict for plaintiff in an action on the case by Anna E. Varnau and Geo. W. Varnau against the Pennsylvania Telephone Co., to recover damages for the death of a husband and father, at Feb. T., 1887, No. 105. Trunkey,'J., absent.

At the trial, before Livingston, P. J., it appeared that, bn Sept. 14, 1886, William Varnau, the husband and father of plaintiffs, was driving a two-horse wagon loaded with furniture along a turnpike over which hung a sagging wire belonging to defendants. It was alleged that the wire hung so low that it caught the furniture and threw the decedent to the ground. It appeared that, immediately before the accident occurred, the decedent was seated under an umbrella. One witness testified that, at the time of the-accident, she saw the decedent on top of the wagon working at the furniture, and that he fell with out-stretched arms. Another witness testified that the wire sawed its way three-fourths of an inch into the top of a bureau. A number of witnesses testified that, prior to the accident, they had seen the wire hanging in a dangerous condition.

When Samuel Hess, a witness for plaintiff, was on the stand, he was asked this question: " Q. Did or did not the' company, shortly after this accident, change the construction of the line along this pike at this point and make it very much higher, by putting in larger poles and stretching the wires ?

Objected to by defendant.

Witness permitted to state whether or not the company, about the time of the accident, or shortly after the construction of their line at this particular point where the accident occurred, by changing the position of the poles, and increasing the height of the wire. Exception. [ 17.]

*646When Philip Fenstermacher, a witness for plaintiff, was on the stand, he was asked this question: “ Q. How high was the wire on the Sunday before the accident ? ” Objected to by defendant. Objection overruled and exception. [18]

When C. W. Coble, a witness for defendant, was on the stand, he was asked, on cross-examination, the following question: “ Q. Did you not receive orders from this company from head-quarters to change the pole and wire at this place?” Objected to by defendant. Objection overruled and exception. [19.]

When Emanuel Hess, a witness for plaintiff, was on the stand, plaintiff made the following offer: Plaintiff offers, by this witness, to contradict the testimony of John Immel, witness for defendant, by showing that Immel and his companion Reese, employees of this company, were hunting at the point of this accident for something, and that subsequently Mr. Immel and Mr. Reese went over into the tobacco field and requested the witness to accompany them to the place where the accident occurred to hunt for the piece of whip, which was found, and the manner of the witness at the time he found the whip. Objected to by defendant. Objection overruled and exception. [20]

When Walter Heinitsch, a witness for plaintiff, was on the stand, he was asked this question: “ Q. Mr. Heinitsch, did you or not ever own a whip like this piece? ” (Hands piece to witness.) Objected to by defendant. Objection overruled and exception. [21]

The court below charged in part as follows:

“Varnau, on Sept. 14, 1886, started with a wagon loaded with furniture, as you have heard, to drive to Lititz. It does not appear that he ever drove a load of furniture over this highway prior to that day, or had ever been over the road prior to that day. It is shown that he proceeded without difficulty, so far as shown, to the place where the accident occurred. When he neared this fatal spot, he was sitting under his umbrella on the seat in his wagon; his horses were walking along properly where the defendant’s wire crossed this highway; from some cause, or for some reason, the wire caught the furniture, and, after being drawn out of place about eighteen feet, the wagon was stopped, and we find the man standing upon the furniture. [If you find his position was dangerous, and that it was by the negligence of the defendant alone that he was, by its wire being tqo low and catching on his furniture, placed in such dangerous position, and he exercised such caution and care as a prudent man would have done, under the circumstances, to extricate himself, that was all that could be required of him. Where a man finds himself suddenly placed in a dangerous position by the negligence of another without his fault, and, in order to extricate himself from such danger, not having time to deliberate and j udge the best way of so doing, happens to select a method of doing so which was not the best, and which, if he had time to consider, he might not have taken, the law would not impute to him *647contributory negligence so readily as if he had time to choose with judgment. All it requires of him is to do as a prudent man would under the circumstances. Did this man, in endeavoring to extricate himself from this danger, do as a careful, prudent man should have done under the circumstances ? This is for you to say. It is hard to tell what a prudent man in his situation would have done. You or I might have backed the wagon so as to slack the wire, which was taut, and then we might have removed the wire without danger, perhaps, or we might have cut the wire and drove on, perhaps. What did care and prudence require him to do, and did he do it ? What he was doing does not clearly appear, but very shortly he was seen falling toward the ground, with his arms outstretched, and was found by the witnesses, who testify as to that, eighteen feet from his wagon, where the back of his head had struck a stone, fracturing the base of his skull and causing concussion of the brain. He was unconscious, and remained so until he died, on Sep. 16, 1886.”] [16]

The plaintiff presented the following points, which were affirmed :

“ 1. If the jury should find that the injuries that caused the death of Varnau were the natural and probable consequence of the negligence of the defendant, or its servants, such a consequence as, under the surrounding circumstances of the case, might and should have been foreseen by the servant as likely to flow from his carelessness, and there was no contributory negligence on the part of Varnau, the jury should find for plaintiff.” [1]

“ 2. The proper measure of damages is the pecuniary loss suffered by the parties entitled to the sum to be recovered, without any solatium for distress of mind; and that loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or trade during the residue of his lifetime, and which would have gone for the benefit of his wife and child, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure.” [2]

The defendant presented, inter alia, the following points :

*“*1. There being no evidence of negligence by the defendant, there can be no recovery by the plaintiff in this action. *Answer:*This is refused; it assumes a point that we do not admit; that is a question for the jury, and we leave it with them.” [3.]

“ 2. The defendant had the right to use its line of telephone in the ordinary way; and, as there is no evidence that the defendant had omitted any precaution which prudent men engaged in like business would have taken, there can be no recovery in this case, and the verdict must be for the defendant. *Answer:*This point is susceptible of division. We divide it, and say, that the defendant had the right to use its telephone lines in the ordinary way. The balance of the point is a question for the jury; if they find no neg*648ligence on the part of the company, the verdict must be for the defendant.” [4]'

“ 4. This action being for damages for death, alleged to have been caused by the negligence of the defendant, the burden is upon the plaintiff to prove that the negligence of the defendant caused the death of William Varnau, without any contributory negligence on his part; and as there is no evidence in this case of negligence of the company, and no proof of the absence of contributory negligence on the part of the deceased, and as contributory negligence on his part affirmatively appears, the verdict must be for the defendant. *Answer:*This point is susceptible of division. The action being for damages for death, alleged to have been caused by the negligence of the defendant, the burden of proof is upon the plaintiff to prove that the negligence of the defendant caused the death of Varnau without any contributory negligence on his part. Plaintiff is not bound to prove affirmatively, as part of their case, that there was no contributory negligence. Her testimony must not show that there was; if it does not, and such negligence is alleged by the defendant, it is part of the defense, and the burden of proof is on defendant. The proofs presented are for the jury. Therefore, the balance of the point is submitted to them.” [5]

“ 5. This is not a case in which mere proof of the accident casts upon the defendant the burden of showing the real cause of the injury, and if that cannot be traced, or has not been made apparent, the accident by which deceased was killed was accidental, and the verdict must be for the defendant. *Answer:*The matters contained in this point are refused. The jury will say from the evidence presented whether defendant has been negligent or not; if not, verdict must be for defendant, or if both negligent, verdict must be for the defendant.” [6]

“ 6. There is no law fixing the height at which a telephone wire is to be maintained. It was not, of itself, a dangerous object. All that .the law requires, so far as the deceased was concerned, is that he could pass under with his load without coming in contact with it, and as he could have driven on the so-called summer road, as others did on that very day, according to the testimony of the plaintiff, his failure to do so, and thus avoid the accident, contributed to it, and the court is requested to say so to the jury. *Anszuer :*This point is susceptible of division. There is no law fixing the height at which a telephone wire is to be maintained; it was not of itself a dangerous object, if in proper position. All that the law requires, so far as the deceased was concerned, is that he could pass under with his load without coming in contact with it'. The balance of this point, contains a question of fact for the jury.

“There is no evidence that deceased had ever been over the road before; he was sitting under his umbrella. If he saw the wire, or knew it was there, and he could not have driven safely under it, and could have driven on the so-called summer road, as others *649did on that day, who knew the wire was there, his failure to do so would be such negligence as would prevent a recovery. If the jury find negligence of such character on his part, there can be no recovery. If he didn’t know or see it was there, his failure to take the summer road would not prevent recovery by plaintiff.” [7]

“ 7. In an action for damages for death, in cases like this, the burden of proof is upon plaintiff to prove that the negligence of defendant caused the death, without contributory negligence on the part of the person killed, and as there is an absence of such proof in this case, the verdict must be for the defendant. *Answer:*In an action for damages for death in a case like this, the burden of proof is upon the plaintiff to prove that the negligence of the defendant caused the death, without (disclosing or showing) contributory negligence on the part of the person killed. Whether the evidence in this case shows such negligence on part of defendant, without contributory negligence, is for the jury.” [8]

“ 8. In this case, negligence will not be presumed from the fact of the occurrence of the accident, and what is negligence is a question of law. The ascertained facts of this case do not show negligence, and the court is requested to say so to the jury as a matter of law. *Anszver:*In this case, negligence will not be presumed from the fact of the occurrence of the accident. And what is negligence in this case is for the jury. They will, from the evidence and the law as we have stated it, find whether there has been negligence on the part of the defendant or not, without contributory negligence on the part of deceased.” [9]

“ 9. Even if the telephone wire was only nine feet four inches above the ground, on the eastern side of the pike from Lancaster to Lititz, on Sep. 14, 1886, as, according to the affirmative testimony in the cause, the dirt or summer road was unobstructed, known by deceased to be so, as it was plainly before his vision on a bright September day, he should have taken the latter road, and his failure to do so will prevent a recovery in this case. *Answer:*It is not shown that deceased was ever over the road before, and unless it be found from testimony that he was aware of the dangerous condition of the wire over the road, he being under his umbrella, his failure to take the summer road would not be such negligence as would, of itself, prevent a recovery.” [10]

“ 11. If Varnau’s loaded wagon caught on the telephone wire, and he drove on regardless of the fact until he pulled the wire eighteen feet east of its usual line, actually breaking the tie-wires and loosening the poles, it was his duty to stop and- remedy the trouble; and, if his action was such as stated by the affirmative testimony in this case, there can be no recovery. *Answer:*It was his duty to stop and loosen the wire as soon as he discovered he was caught by it. The presumption is, he did his duty.” [11]

*“*12. The fact proved by plaintiff that other men with loaded wagons equally high passed on this road under the wire, without *650injury, raises the presumption of negligence on the part of Varnau, and, as the plaintiff has shown no evidence to rebut this, there can be no recovery. *Answer:*This we answer in the negative.” [12]

“ 13. Unless it was shown that defendant’s wire obstructed the public highway, and that it refused, after notice of the same, to remove the obstruction, defendant is not guilty of negligence; and, as there is no evidence of such notice, the verdict must be for the defendant. *Answer:*This point we answer in the negative.” [14]

“ 15. As the defendant was engaged in the prosecution of a lawful business, and the casualty in which deceased was killed was accidental, no action can be supported for an injury arising therefrom. *Ansiver:*Defendant was engaged in the prosecution of lawful business, and unless the jury find deceased was killed by reason of its negligence, without concurring negligence on his part, the action cannot be supported.” [15]

Verdict for plaintiffs for $7,500, and judgment thereon.

*The assignments of error*specified, 1-15, the answers to plaintiff’s and defendant’s points, quoting the points and answers; 16, the portion of the charge embraced in brackets, quoting it; 17-21, the rulings on the evidence, quoting the bills of exceptions but not the evidence; 22, the.action of the court in not entering a non-suit, and in overruling the defendant’s motion for a non-suit. There was no 13th assignment of error.

*Louis W. Hall,*with him *A. C. Reinoehl*and *H. M. North,*for plaintiff in error.

There is, in this case, no legal presumption to take the place of proof of negligence, or to shift the burden of proof. But, even if there was such presumption, in the absence of all evidence on the subject, it is a presumption of fact merely; and, in view of the undisputed facts in this case, as proved on both sides, any such presumption is rebutted by the failure of plaintiff to show any negligence of defendant, and the plainly disclosed contributory negligence of the deceased, both in the affirmative testimony, and that of defendant, demonstrates the correctness of the defendant’s position on the trial.

Schum *v.*R. R., 107 Pa. 8, was the case of a driver on a railroad crossing where there was possibly more danger to withdraw than to proceed. There was no such danger here. The horses were walking in broad daylight, when the furniture caught the wire, pulling it some eighteen, feet out of line, etc. It was the driving on that placed him in a dangerous position. He did not then exercise the care required of a prudent man, or he would have stopped and loosened the wire as soon as he saw he was caught.

The accident occurred in open daylight, and the deceased could have avoided the injury if he had made proper use of his faculties. Failure to do so was contributory negligence: Beach, Con. Neg., pp. 7 (§3). 8 (§4), 14, U, 19. 21, 22, 37, 42(§ 14), 61, 62, 63,421, 423, 425, 431, 454; R. R. *v.*McClurg, 56 Pa. 294; Township *v.**651Watson, 116 Pa, 344; Southside Passenger R. R. *v.*Trich, 117 Pa. 322; Phila. Traction Co. *v.*Orbann, 21 W. N. C. 76; Stager *v.*Pass. Ry. Co., 21 W. N. C. 131; McClintock *v.*R. R., 21 W. N. C. 133 ; Barnes *v.*Sowden, 21 W. N. C. 81; Erie *v.*McGill, 101 Pa. 616; Pittsburgh S. R. R. *v.*Taylor, 104 Pa. 306; Forks Twp. *v.*King, 84 Pa. 230; King *v.*Thompson, 87 Pa. 365 ; R. R. *v.*Boyer, 97 Pa. 91; Crescent Twp. *v.*Anderson, 19 W. N. C. 228 ; R. R. *v.*Morgan, 82 Pa. 134; Butterfield *v.*Forrester, 11 East, 60; Spear *v.*R. R., 21 W. N. C. 87; Allegheny Heating Co. *v.*Rohan, 45 Leg. Int. 84; Allison Mfg. Co. *v.*McCormick, 12 Atl. 273; B. & O. R. R. *v.*Colvin, 12 Atl. 273.

The burden is upon the plaintiff to prove that the negligence of the defendant caused the accident, without contributory negligence on the part of the plaintiff: Baker *v.*Fehr, 97 Pa. 70.

The admission of evidence as to the condition of the wire a week before the accident occurred was erroneous: B. & O. R. R. *v.*Colvin, 12 Atl. 337; Corcoran *v.*Peeckskill, 37 Alb. L. J. 235; Earyl *v.*Lake Shore R. R., 30 Am. & Eng. Ry. Cases, 163.

The court erred in its instruction to the jury on the question of damages: Mansfield Coal Co. *v.*McEnery, 91 Pa. 185 ; Iron Co. *v.*Differ, 17 W. N. C. 6; Sh. & Red., Neg. 668 ; R. R. *v.*Adams, 89 Pa. 31; R. R. *v.*Decker, 84 Pa. 419.

*H. C.*Brubaker, for defendant in error.

The common law presumption is, that every one does his duty until the contrary is proved, and, in the absence of all evidence on the subject, the presumption is that the deceased observed the precautions which the law prescribed: Pa. R. R. *v.*Weber, 76 Pa. 157; Pa. R. R. *v.*Schum, 107 Pa. 12.

Decedent was driving at a walk, is presumed, to have had his eye, where every careful and prudent driver would have it, on the road-bed in front of him to avoid obstructions there, and nowhere else was he bound to look. He is presumed not to have known of the obstruction until the wire had struck and fastened itself in the furniture, which must, under the circumstances of the case, have given him the first warning, when the wire became taut and not before. It was an inconspicuous object, and one which he was not bound to see or look for, in attending to his lawful duties upon the public highway.

The general rule applicable to such cases is thus stated : “The injury must be the natural and probable consequence of the negligence, such a consequence as, under the surrounding circumstances of the case, might and ought to have been seen by the wrong-doer as liable to flow from his act:” Pa. R. R. *v.*Hope, 80 Pa. 377; Beach, Con. Neg., 32-34.

Such nearness in the order of events, and closeness in the relation of cause and effect, must subsist, that the influence of the injurious act may predominate over that of other causes, and shall *652concur to produce the consequence, or may be traced in those causes. To a sound judgment must be left each particular case: Beach, Con. Neg., 33, note 1. '

What is or what is not a probable consequence of a particular act is of course not a matter of law, but of common sense: 1 Smith, Neg., 10, Text Book Series.

Applying this principle to the case here, it is clear that the sagging wire, the inconspicuous obstruction of the public highway, was the primary and proximate cause of the accident.

The jury must determine whether the final result cannot be said to be the natural and probable consequence of the negligence: Pa. R. R. *v.*Hope, supra; Beach, Con. Neg., 23, 24.

A fireman of an engine, while in the performance of his duty, was struck by a telegraph pole, which was only a foot from the engine. In his action for negligence, held, the question of negligence on the part of the company in allowing the pole to stand so near the track was a question of fact for the jury: Hall *v.*Union Pacific Ry., 16 Fed. 744; S. C., 5 McCrary, 257.

Plaintiff was injured by reason of some one having placed a push-car on defendant’s railroad track. The car had been left unlocked by the side of the track by defendant’s servants. Held, that the question of whether negligence was imputable to the railroad company was for the jury. Harris *v.*Union Pacific Ry., 4 McCrary, 454-

“ That he did thus imperil the safety of his own person, is very clearly established by the testimony of the defense, and this fact seems also to be confirmed by the circumstances of the case,” nevertheless, the question is one for the jury: Payne *v.*Reese, 100 Pa. 3°7-

A building near a railroad was found to be on fire, whilst a train drawn by an engine without a spark-catcher was passing. There was no direct evidence that sparks had come from the engine. Held, proper for the court to submit the question of negligence to the jury: R. R. *v.*Doak, 52 Pa. 379.

We admit that, where there are no disputed facts as to direct cause of the injury, the court must determine it as a matter of law: West Mahanoy Twp. *v.*Watson, 116 Pa. 351. The case here cited, as well as the authorities therein referred to, clearly show that the accidents were caused by intervening agencies. The facts were undisputed. The case before us now was different. Defendant’s theory is that decedent struck the wire with his whip and fell off. There was evidence for the jury to pass upon.

If there be no doubt as to the facts, yet if there be substantial doubts as to the inferences to be drawn from them, they are for the jury: McKee *v.*Bidwell, 74 Pa. 218; Beach, Con. Neg., 456.

The question of remote or proximate cause was for the jury and was properly submitted.

The changing of the construction of the line at the point of *653the accident in the manner in which it was done shortly after the accident, was an admission on the part of the company that it was either improperly constructed or was in bad and dangerous condition at the time of the accident. This principle is well settled: West Chester & Phila. R. R. *v.*McElwee, 67 Pa. 314 — 5 ; P. R. R. *v.*Henderson, 51 Pa. 315 ; McKee *v.*Bidwell, 74 Pa. 225.

Oct. 1, 1888.

We were entitled to show, in corroboration, the same careless condition of the wire and obstruction of the highway continuously for some time before the accident.

Contributory negligence is matter of defense, and the burden is upon the defendent, unless the plaintiff’s own case raises a presumption of negligence on his part. He is not bound to negative his own negligence. Beach, Con. Neg., 448-9.

It was not for the court to say what damages should be given. The question was fairly left to the jury. The court below could have granted a new trial if it thought- that the damages were excessive, as has been frequently intimated by this court it should do in such case, but that matter is always left to the discretion of the trial court: Mansfield Coal Co. *v.*McEnery, 91 Pa. 189.

Per Curiam,

An examination of this case satisfies us that none of the assignments of error can be sustained. The charge of the court and its rulings are strictly correct; the case was well tried and submitted, and the defendant has no just cause of complaint.

The judgment is affirmed.