Opinion,
Mr. Justice Gbeen :
On the trial of this case the plaintiff gave evidence to show that there was a depression of about eight inches in depth in the surface of the ground between the rails of the defendant’s track, extending all the way across, between the rails, and from two to three feet in width. She further gave evidence to prove that her husband while driving an ice wagon on the defendant’s track, was thrown from the wagon under its wheels and killed in consequence of a jolt sustained by the wagon by the front wheels, or one of them, dropping into the depression of the surface above described. And it was claimed and was essential to any right of recovery to prove, that the defendant was responsible for the depression in the surface of its track and was guilty of negligence for not repairing it, and that this negligence was the occasion of the death of the plaintiff’s husband. There was abundance of testimony to prove that there was such a defect in the track of the road; and the evidence as to the manner of the accident, while somewhat meagre, was yet quite sufficient to support the theory that one of the wheels of the [235]*235wagon did drop into the hole and cause the jolt which threw the deceased under the wheels of the wagon.
Upon the foregoing statement of the facts, the terms of the liability of the defendant were sufficiently established to justify a verdict against the company if there were nothing else in the case to lead to a different conclusion. It was abundantly proved on the trial by the witnesses, both of the plaintiff and the defendant, that trenches had been dug in the street at the place of the accident, but some time before, by plumbers, who were putting in gas, water, and sewer pipes to connect a block of new houses on the east side of the street with the street mains lying underneath the surface of the street in front of the houses. There was no dispute as to this fact and the question as to the defendant’s liability depended upon whether: (1) the hole or depression where the accident occurred was occasioned by the act of the defendant or by its negligence in not repairing, or (2) whether it was occasioned by the plumbers in the employ of either the city or private persons in digging trenches and laying the connecting pipes. The defendant contended that it had nothing to do with making the hole or depression in the surface at the place of the accident, but that it was the result exclusively of the operations of the plumbers employed by the city or private persons and therefore that the defendant was not liable.
The charter of the defendant and the city ordinances were given in evidence defining the duty of the former to keep the streets repaired and defining the obligations both of the city and of private persons in respect to the opening of the streets and closing them in laying gas, water, and sewer pipes.
It was not contested on the argument, and the learned court below charged, that if the defect in the highway in question was caused by the city or by private persons in laying pipes, and that they were guilty of negligence in not repairing, the defendant was not liable. In order then that the case should be properly presented to the jury, it should have been explained to them that if the defect which caused the accident was caused by the neglect of the defendant in permitting the track to get out of repair and not amending it, the defendant was liable if the accident was the result of the want of repair, but if the defect was the work of the city or private persons who were [236]*236bound to repair, but neglected to do so, the defendant was not liable, and the verdict should be for the defendant. It was certainly the right of the defendant to show that the injury in question was the result of the negligence of persons other than themselves, and to require of the court to charge the jury distinctly that if they so found the facts, their verdict should be for the defendant.
Having this situation of the case in view we find that the whole body of the charge, so far as appears on this record, is contained in the following twelve printed fines : “ The defendant contends that the accident was due to the neglect of the builders of the houses who tore up the street for the purpose of putting in gas and water, and, consequently, that it is not answerable in point of law, and I should so instruct the jury. It seems to me that the defendant has taken away that portion of the defence by evidence that the excavation made by the builders was filled up on the west side of the street, and the street left in good order by them, with the exception of the east side; and if this is so, and the accident was due to the condition of the west side of the street, arising from the subsequent use of the street for traffic, the principle contended for by the defendant does not apply.”
We cannot consider this an adequate presentation of the controversy to the jury. ■ It contains no statement of what the conflicting questions of fact are upon which the decision of the^ case must turn. Nor does it explain the relative liabilities of the various parties who, under the testimony, may be found to have occasioned the defect in the highway, and, without such explanation the jury would be without guide or chart in their endeavors to ascertain upon whom the responsibility for the injury rested. But, in addition to tins, the charge takes away from the defendant the right to have the jury even consider the most conspicuous defence which, under the testimony, the defendant could set up against the plaintiff’s claim. The jury is told that the defence that the accident was due to the neglect of the builders of the houses was taken away by giving evidence that the excavation made by the builders was filled up on the west side of the street, and the street left in good order by them, with the exception of the east side. But how can this be so ? Whether the builders or the defendant filled [237]*237up the street on the west side of the track, and left it in good order, certainly cannot affect the question as to the responsibility for the hole between the rails. If that hole remained and caused the injury, it matters not that all the rest of the street on both sides was filled up in the most perfect condition. The question still remains, who caused the hole between the rails, and was that the cause of the injury ? But, under the charge, the jury could not consider that question.
The mere withdrawal of this question from the jury was error, but there was further error in saying to the jury that if the accident was due to the condition of the west side of the street, arising from the subsequent use. of the street for traffic, the principle contended for by the defendant does not apply. The reason of this last error is, that there was no evidence to sustain it. We cannot find in the testimony of any witness the statement that the accident was due to the condition of the west side of the street in any manner, or that there was any defect therein arising from subsequent use of the street for traffic, or at all. It is true that Donaghy says the front wheels went off on the west side, but he evidently means the west side of the track, and that the hole that was there had been put there for the purpose of putting pipes in the new buildings, and cobble-stones had been thrown on, so that whatever hole there was there it was not occasioned by the subsequent use of the street, but was the remnant of the previous excavation.
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Opinion,
Mr. Justice Gbeen :
On the trial of this case the plaintiff gave evidence to show that there was a depression of about eight inches in depth in the surface of the ground between the rails of the defendant’s track, extending all the way across, between the rails, and from two to three feet in width. She further gave evidence to prove that her husband while driving an ice wagon on the defendant’s track, was thrown from the wagon under its wheels and killed in consequence of a jolt sustained by the wagon by the front wheels, or one of them, dropping into the depression of the surface above described. And it was claimed and was essential to any right of recovery to prove, that the defendant was responsible for the depression in the surface of its track and was guilty of negligence for not repairing it, and that this negligence was the occasion of the death of the plaintiff’s husband. There was abundance of testimony to prove that there was such a defect in the track of the road; and the evidence as to the manner of the accident, while somewhat meagre, was yet quite sufficient to support the theory that one of the wheels of the [235]*235wagon did drop into the hole and cause the jolt which threw the deceased under the wheels of the wagon.
Upon the foregoing statement of the facts, the terms of the liability of the defendant were sufficiently established to justify a verdict against the company if there were nothing else in the case to lead to a different conclusion. It was abundantly proved on the trial by the witnesses, both of the plaintiff and the defendant, that trenches had been dug in the street at the place of the accident, but some time before, by plumbers, who were putting in gas, water, and sewer pipes to connect a block of new houses on the east side of the street with the street mains lying underneath the surface of the street in front of the houses. There was no dispute as to this fact and the question as to the defendant’s liability depended upon whether: (1) the hole or depression where the accident occurred was occasioned by the act of the defendant or by its negligence in not repairing, or (2) whether it was occasioned by the plumbers in the employ of either the city or private persons in digging trenches and laying the connecting pipes. The defendant contended that it had nothing to do with making the hole or depression in the surface at the place of the accident, but that it was the result exclusively of the operations of the plumbers employed by the city or private persons and therefore that the defendant was not liable.
The charter of the defendant and the city ordinances were given in evidence defining the duty of the former to keep the streets repaired and defining the obligations both of the city and of private persons in respect to the opening of the streets and closing them in laying gas, water, and sewer pipes.
It was not contested on the argument, and the learned court below charged, that if the defect in the highway in question was caused by the city or by private persons in laying pipes, and that they were guilty of negligence in not repairing, the defendant was not liable. In order then that the case should be properly presented to the jury, it should have been explained to them that if the defect which caused the accident was caused by the neglect of the defendant in permitting the track to get out of repair and not amending it, the defendant was liable if the accident was the result of the want of repair, but if the defect was the work of the city or private persons who were [236]*236bound to repair, but neglected to do so, the defendant was not liable, and the verdict should be for the defendant. It was certainly the right of the defendant to show that the injury in question was the result of the negligence of persons other than themselves, and to require of the court to charge the jury distinctly that if they so found the facts, their verdict should be for the defendant.
Having this situation of the case in view we find that the whole body of the charge, so far as appears on this record, is contained in the following twelve printed fines : “ The defendant contends that the accident was due to the neglect of the builders of the houses who tore up the street for the purpose of putting in gas and water, and, consequently, that it is not answerable in point of law, and I should so instruct the jury. It seems to me that the defendant has taken away that portion of the defence by evidence that the excavation made by the builders was filled up on the west side of the street, and the street left in good order by them, with the exception of the east side; and if this is so, and the accident was due to the condition of the west side of the street, arising from the subsequent use of the street for traffic, the principle contended for by the defendant does not apply.”
We cannot consider this an adequate presentation of the controversy to the jury. ■ It contains no statement of what the conflicting questions of fact are upon which the decision of the^ case must turn. Nor does it explain the relative liabilities of the various parties who, under the testimony, may be found to have occasioned the defect in the highway, and, without such explanation the jury would be without guide or chart in their endeavors to ascertain upon whom the responsibility for the injury rested. But, in addition to tins, the charge takes away from the defendant the right to have the jury even consider the most conspicuous defence which, under the testimony, the defendant could set up against the plaintiff’s claim. The jury is told that the defence that the accident was due to the neglect of the builders of the houses was taken away by giving evidence that the excavation made by the builders was filled up on the west side of the street, and the street left in good order by them, with the exception of the east side. But how can this be so ? Whether the builders or the defendant filled [237]*237up the street on the west side of the track, and left it in good order, certainly cannot affect the question as to the responsibility for the hole between the rails. If that hole remained and caused the injury, it matters not that all the rest of the street on both sides was filled up in the most perfect condition. The question still remains, who caused the hole between the rails, and was that the cause of the injury ? But, under the charge, the jury could not consider that question.
The mere withdrawal of this question from the jury was error, but there was further error in saying to the jury that if the accident was due to the condition of the west side of the street, arising from the subsequent use. of the street for traffic, the principle contended for by the defendant does not apply. The reason of this last error is, that there was no evidence to sustain it. We cannot find in the testimony of any witness the statement that the accident was due to the condition of the west side of the street in any manner, or that there was any defect therein arising from subsequent use of the street for traffic, or at all. It is true that Donaghy says the front wheels went off on the west side, but he evidently means the west side of the track, and that the hole that was there had been put there for the purpose of putting pipes in the new buildings, and cobble-stones had been thrown on, so that whatever hole there was there it was not occasioned by the subsequent use of the street, but was the remnant of the previous excavation. But even if the defendant gave evidence to prove that all the holes, both on the west and east sides and in the middle of the track, had been filled, and the whole street had been put in good repair, yet this would only have produced a conflicting state of the testimony, inasmuch as the plaintiff’s testimony to the contrary still remained, and then it was for the jury to decide which evidence they believed, and if they believed that the hole between the rails was not repaired, but remained as the plumbers had left, or only partially filled it, still the defendant would not be liable. But all this was taken from the jury, both in the general charge and in the answers to the points.
The first point of the defendant was an abstract proposition, pertinent to the case, yet not mingled with its facts, and not demanding any conclusion of" fact, and it should have been affirmed as it stood, without qualification. The same is true of [238]*238the answer to the second point. The answer to the third point was still more erroneous. The point was in the following words: “If the jury believe that the injury was occasioned by the negligence of the plumber, who was engaged in putting in pipes under license from the city of Philadelphia, there can be no recovery from the railway company.” Most certainly this point was sound, and should have been affirmed just as it stood. Because the proposition of the point was that if the negligence of the plumber occasioned the injury there could be no recovery from, the defendant, and if that negligence caused the injury it could not have been caused by the negligence of the defendant. Yet the answer was, “I affirm that point; but, if after his negligence ceased to operate, the railway company are negligent, they may be answerable.” This answer is both confusing and contradictory. Ostensibly it is an affirmance, but really it is a denial. The error of the learned court consisted in not obseiwing carefully the language and true meaning of the point. The hypothesis of the point was that the injury, that is, the injury for which this action was brought, was actually caused or produced by the negligence of the plumber, and that being so the conclusion was that the defendant was not hable. Of course this was necessarily correct. But the court said, if after his negligence had ceased to operate the railway company was negligent, it would be answerable, forgetting that if the injury occurred after the negligence of the plumber had ceased to operate, the injury could not have been caused by the plumber’s negligence at all. Yet this was the very cause assumed in the point, and it was the legal truth of the conclusion from the assumed fact that was for the court to determine, which they did, not by denying the correctness of the conclusion of law upon the assumed fact, but by denying the assumed fact, or rather by substituting another assumed fact in its place, to wit, that the defendant’s negligence caused the injury. Of course that conclusion was correct, but that was not the condition upon which the point was put, and upon which the defendant had a clear right to have a distinct and unequivocal answer.
On the first four assignments of error, the judgment must be reversed. The remaining assignments are not sustained as they involve controverted questions of fact which are for the jury.
Judgment reversed, and new venire awarded.