Hart v. Delaware, L. & W. Railway Co.

O’BRIEN, J.

I concur in the result because of the errors assigned, and the reasons given in his opinion by the presiding justice relating to the refusal of the trial judge to charge certain requests made by the defendant. I do not, however, assent to his view that the facts here presented did not tend to establish negligence on the part of the defendant. The plaintiff’s testimony presented a question which should have been submitted to the jury, because it made out a prima facie case of negligence on the part of the defendant, and freedom from contributory negligence on the part of the plaintiff. It is true the jury, upon such evidence, might be at liberty to conclude in favor of the plaintiff or the defendant; but it is only by resolving every inference to be drawn from the facts most favorably to the defendant that it can be concluded that the burden placed on the plaintiff was not sustained. The plaintiff had a right to assume that the defendant would properly discharge the duty of keeping the bridge and its appliances in such a condition that the float could safely approach them, even upon a dark night; and the question of whether failure and neglect to discharge this duty, by permitting the kej's to project from the bridge, which would concededly be negligent unless explained, was, in the light of the circumstances presented to explain such negligence, peculiarly a question of fact. It is true that it was competent for the defendant to show the circumstances under which its employe allowed these keys to project. But such explanation would not, in my opinion, change the situation of still leaving the question of negligence one for the jury, upon all the testimony. Were it not, therefore, for the refusal to charge the requests to which the defendant was entitled, I should have been in favor of affirming the judgment; but for the reasons assigned I concur in the result.