131. Negligence is the absence of 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 are 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.1

In order to justify the court in treating the question of contributory negligence as one of law, not only the facts, but the inferences from them must be free from doubt. If there is doubt as to either the case must go to the jury.2

It is only in clear cases where neither the facts nor the inferences to be drawn from them are in doubt that the court is warranted in withdrawing the question of negligence from the jury.3

Although plaintiff's case as made out by himself, is contradicted by one of his own witnesses and by all called by the defence, the case is for the jury.*

The court has a right to express an opinion as to the evi

I Menner & Co. v. Delaware & Hudson Canal Co., 7 Super. Ct. 135 (1898); McCracken v. Consolidated Traction Co., 201 Pa. 378 (1902.)

2 Conyngham v. Erie Electric Motor Co., 15 Super. Ct. 573 (1901); Elston v. Delaware, Lackawanna & Western R. R., 196 Pa. 595 (1900.) 3 Kroesen v. New Castle Electric Str. Ry. Co., 198 Pa. 26 (1901.) 4 Todd v. Philadelphia & Reading Ry., 201 Pa. 558 (1902.)

dence or as to the witnesses; providing nothing is said to bind the jury or preclude them from deciding the case for themselves on the evidence.5

The jury are not bound to believe every story that a witness or witnesses are willing to swear to, simply because no other witness contradicts it. If its inherent improbability or irreconcilability with facts shown or admitted are such that it does not command their assent the jury may disregard it. But this rule is founded on common sense and knowledge of human nature and must be limited by the same standards. When the testimony is not in itself improbable, is not at variance with any proved or admitted facts or with ordinary experience and comes from witnesses whose candor there is no apparent ground for doubting the jury is not at liberty to indulge in a capricious disbelief. If they do so, it is the duty of the court to set the verdict aside.

Plaintiff is not required to disprove negligence on his part, by negative testimony, in the first instance. If he establishes a case against the defendant without disclosing negligence on his own part he is entitled to go to the jury.7

When with the certainty of an infallible mathematical test applied to the testimony of a witness, he is found to be mistaken in a material matter, it would be a travesty upon justice to allow a jury to consider such testimony and a license to them to render a false instead of a true finding. Such testimony is either intentionally false or mistakenly so and in either case the court should instruct the jury to disregard it.

Mutual Negligence-Joint Tort Feasors.

132. If a person sustains injuries by reason of the concurrent negligence of two railway companies, they are jointly and severally liable."

5 Simmons v. Pennsylvania R. R., 199 Pa. 232 (1901.)

6 Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610 (1900); Blotz v.

Lehigh Valley R. R. Co., 11 Kulp 98 (1902.)

7 Phillips v. Duquesne Trac. Co., 8 Super. Ct. 210 (1898.)

8 Bornscheuer v. Consolidated Traction Co., 198 Pa. 332 (1901), affirm

ing 30 Pitts. 344 (1900.)

9 Rahenkamp v. United Traction Co., 14 Super. Ct. 635 (1900.)

A passenger in a street car was injured in a collision between a car and a railroad train. The passenger sued both the street railway company and the railroad company. The evidence tended to show that the driver of the street car did not stop, look or listen before going upon the railroad company's tracks, and that when the car was upon the tracks the gateman of the railroad company carelessly lowered the gate and kept the car on the track without any means of escape. It was held that a verdict against both companies should be sustained.10

Where a street car and a train on a steam railroad collide, and a passenger in the street car is injured, both companies are answerable in damages to such passenger, if it appears that they were both negligent, and the passenger may maintain his suit against either.11

In a suit against a city and a street railway company, to recover damages for injuries caused by a defect in the street, where the statement avers not merely the common neglect of a common duty but a neglect by the city of the duty imposed upon it, and a non-suit is entered in favor of the street railway, a verdict against the city will not be reversed.12

In an action against two street railway companies and a railway construction company to recover damages for the construction of a street railway without the owner's consent, for injuries to crops and fences, and for injuries resulting from the reckless operation of the cars, where it appears that one of the street railway companies had leased its franchises and property to the other and was not responsible for any of the torts alleged; that the other street railway company was responsible alone for the negligent operation of the road and that the construction company was responsible alone for the destruction of crops and fences, and both the construction company and the other railway company were liable for the un

10 Downey v. Phila. Traction Co. and Philadelphia & Reading R. R., 161 Pa. 588 (1894), affirming 3 Dist. 81 (1893.)

II O'Toole v. Pittsburgh & Lake Erie R. R., 158 Pa. 99 (1893.)

12 John v. Philadelphia, 19 Super. Ct. 277 (1902.)

lawful construction of the road without plaintiff's consent, it is error to enter a non-suit.13

Where a joint tort is alleged against three defendants and proved against only two, a new suit should be entered or verdict directed as to the innocent defendant, and the case submitted on the joint tort of the other two.14

In trespass all defendants are alike guilty and each is liable for the damages sustained without regard to the different degrees of guilt and when exemplary damages are claimed they should be assessed according to the acts of the least guilty, but where compensatory damages are sought for the law will not apportion the guilt or responsibility of the tort feasors, but holds them all for what the most culpable ought to pay.15

A joint tort must be proved as alleged and the proof of separate torts will not warrant a recovery against any of the defendants.16

Where a passenger in alighting from a street car, as directed by the conductor, is thrown by a block of wood negligently placed across a trench which had recently been dug and filled up by a gas company, the street railway company and the gas company are not liable as joint tort feasors.17

Where two or more persons act independently in producing an injury, they are not jointly liable for the combined results of their act, and the fact that it is difficult to determine the relative proportion of injury by each is not sufficient reason for holding them jointly liable.18

Where a person is injured by the obstruction of a highway with a rail it is improper to join the city with the street railway company and the contractors who were laying the tracks.

13 Minnich v. Lancaster & Lititz Elec. Ry. Co., 203 Pa. 632 (1902); 19 Lanc. 401 (1902.)

14 Minnich v. Lancaster & Lititz Ry. Co., 203 Pa. 632 (1902); 19 Lanc. 401 (1902.)

15 Dennison v. Somerset & Cambria R. R., 21 Super. Ct. 248 (1902.) 16 Howard v. Union Traction Co., 195 Pa. 391 (1900), affirming 9 Dist. 99 (1900); 23 Pa. C. C. R. 295 (1900.)

17 Howard v. Union Traction Co., 195 Pa. 391 (1900), affirming 9 Dist. 99 (1900); 23 Pa. C. C. R. 295 (1900.)

18 Magee v. Pennsylvania Schuylkill Valley R. R., 13 Super. Ct. 187 (1900.)

It appeared that plaintiff's husband fell over a girder rail lying in a gutter and received injuries from which he subsequently died. It was alleged in the declaration that the city of Philadelphia was liable because of its failure to keep the highway free and clear of obstruction; that the Electric Traction Company was liable because it negligently permitted a rail to be so placed as to obstruct the highway and cause the accident and that the contractors are chargeable because they acted jointly with the traction company in placing an obstruction on the highway and allowing it to remain there, thus causing the accident. The defendants were all sued as joint tort feasors, under the idea of a community of interest and a concurrent responsibility. Plaintiff was allowed to recover against the traction company, as the evidence failed to show that the act complained of was joint. Potter, J., in reversing the lower court, said: "It was clearly wrong to sue the city jointly with the other defendants, because the measure of its responsibility is entirely different. Its liability is secondary and not primary. The evidence produced at the trial showed that there was no concert of action between the traction company and the other defendant, the contractors. The duty of each was distinct and of a different nature. For its own breach of duty, each was liable separately and they should not have been sued jointly. It is true that a verdict was rendered and judgment was entered against one defendant only, but we are not satisfied that this corrects the error. We are of opinion that where a plaintiff in an action of trespass to recover damages for negligence declares for a joint tort and the evidence shows no joint action by defendants, a verdict and judgment against one defendant for a separate tort should not be permitted." 19

Practice.

133. Where an action of trespass has been brought by a husband and wife in right of wife for personal injuries to her, the court may, although over two years has elapsed since the

19 Wiest v. Electric Traction Co., 200 Pa. 148 (1901); Goodman v. Coal Township, 206 Pa. 621 (1903.)