Appeal, No. 102, Jan. T., 1950, from judgment of Court of Common Pleas of Lycoming County, June T., 1948, No. 360, in case of Commonwealth of Pennsylvania v. Montour Transport Company. Judgment reversed.
S. Dale Furst, Jr., with him Phil H. Lewis, Deputy Attorney General, T. McKeen Chidsey, Attorney General, and Furst, McCormick, Muir & Lynn, for appellant.
John C. Youngman, with him Candor, Youngman & Gibson, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE JONES
The Commonwealth sued to recover for damages done one of its highways (U.S. Route 15 in Lycoming County) by the burning thereon of a tractor-trailer and its cargo of gasoline. The tractor-trailer was the property of the defendant company and, at the time the fire occurred, was being operated by an employe of the defendant on the latter's business. The conflagration completely destroyed the automotive equipment.
In its complaint, the plaintiff averred the happening and character of the accident; that, at all times material to the action, the maintenance and operation of the tractor-trailer was in the exclusive control of the defendant, its agents or servants; and that the fire was caused solely by the negligence and carelessness of the defendant, its agents or servants: The complaint did not, however, contain any averment of a specific act of negligence. The defendant filed preliminary objections asserting that the complaint failed to state a cause of action. The court en banc sustained the preliminary objections with leave to the plaintiff to amend. The plaintiff avowedly being unable in the circumstances to assign the cause of the fire, no amendment was offered and judgment was thereafter entered for the defendant on the pleadings. This appeal by the plaintiff followed.
It is, of course, hornbook that negligence is not to be presumed from the mere happening of an accident: Conway v. Philadelphia Gas Works Company, 336 Pa. 11, 14, 7 A.2d 326; Hanley v. Peoples Natural Gas Company, 325 Pa. 6, 11, 188 A. 157; Greed v. Manufacturers' Light and Heat Company, 238 Pa. 248, 251, 86 A. 95. But that does not mean that negligence must be proven by direct evidence. It may be established circumstantially, e.g., as by physical evidences of excessive speed, and it may be established by proof that the instrumentality causing the injury was within the exclusive management and control of the defendant
and the accident such as would not have happened in the ordinary course of events without negligence. The latter rule, known as the doctrine of exclusive control, is recognized and applied in Pennsylvania: Fitzpatrick v. Penfield, 267 Pa. 564, 577, 109 A. 653, and cases there cited. See also Maltz v. Carter, 311 Pa. 550, 553, 166 A. 852; Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497, 504, 32 A. 44; and Trouser Corporation of America v. Goodman & Theise, Inc., 153 F. 2d 284, 285 (C.C.A. 3); cf. Sierocinski v. E.I. Du Pont De Nemours & Co., 118 F. 2d 531, 535-536 (C.C.A. 3). In the Fitzpatrick case, supra. Scott v. London & St. Katherine Docks Co., 3 H. & C. 596, is spoken of as the leading case on the subject. There, ERLE, C.J., said almost a century ago that "... where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." In words identical with the foregoing, the rule was quoted in Shafer v. Lacock, Hawthorn & Co., supra, from Shearman and Redfield on Negligence, Secs. 59 and 60.
We recently applied the doctrine of exclusive control in Turek v. Pennsylvania Railroad Company, 361 Pa. 512, 518, 64 A.2d 779. Although the action there was against a common carrier, the doctrine of res ipsa loquitur was not applicable.*fn1 Proof of negligence was necessary to a recovery under the circumstances peculiar to that case. The plaintiff's decedent was an employe of the defendant company and, at the time of his ...