Menner v. President of the Delaware & Hudson Canal Co.

Citations

• 7 Pa. Super. 135
• 1898 Pa. Super. LEXIS 253

Syllabus

<p>Province of court and jury — Question for jury — Conclusion from admitted, facts.</p> <p>When the determination oí the issue depends only on the existence of certain facts, and these are not in question, the decision rests with the court. But when it depends not merely on the existence of facts, but on conclusions arising from them respecting which there is no fixed standard of judgment, it is for the'jury, even when there is no dispute as to the facts. While facts may be admitted, the conclusions to be drawn from them may remain a matter of controversy. To justify a verdict by direction, two conditions must concur: (1) The controlling facts must be established beyond doubt; (2) Their effect, in the conclusions to which they lead, must be so clear and unquestionable that it may be judicially declared.</p> <p>Negligence — Measure of care — Question for jury.</p> <p>Negligence is the absence of the care required by the circumstances. When the measure of care is fixed and unvarying, and there is no question as to the circumstances, it is for the court to determine whether it has been observed. But when the circumstances are in dispute, or, being undoubted, ai*e such that the measure of care cannot be fixed, it is for the jury to determine its measure, and, from the facts, as found or admitted, to draw the conclusion of due care or of negligence.</p> <p>Common carriers — Duty to carry safely — Burden of proof.</p> <p>The duty of a common carrier is to carry safely, unless prevented by the act of God or of the public enemy. It may, -however, be limited by special contract, or by notice to which the law imputes contractual effect. When this defense is made, the burden of proof is on the carrier.</p> <p>Actions — Carrier's breach of duty — Appeals from justice — Triad on the merits.</p> <p>An action either ex delicto or ex contractu will lie for the carrier’s breach of duty, and on an appeal from a cause brought before a magistrate no mistake in the form or name of the