Originally posted by maurizio13:
Huh?
Go read the case again slowly.
He sued for damages, the defendant defence was plaintiff exceeded
speed limit. But the facts of the case is, the tree fell, hit the
car and the plaintiff was awarded damages (Plaintiff's recovery is
sustained).
[b]Berry v. Sugar Notch
Borough
Brief Fact Summary
Plaintiff was running his car on borough street in a violent wind
storm. As he passed under a tree, it was blown down crushing the
roof of his car and causing him serious injury. Plaintiff was
running his car in excess of the speed limit as permitted by a
borough ordinance.
Rule of Law and Holding
Plaintiff's rate of speed did not cause or contribute to the harm
that he suffered. His actions did not increase the foreseeable
likelihood that a tree would fall on his car. It cannot be said
that plaintiff was contributorily negligent. Thus, Plaintiff's recovery is
sustained.
[/b]
Just as an example of how easy it is to manipulate "official"
documents, let's have a full review of this case:
Berry v. Sugar Notch Borough
43 A. 240
Supreme Court of Pennsylvania, 1899
OPINION BY: FELL.
The plaintiff was a motorman in the employ of the Wilkes-Barre and
Wyoming Valley Traction Company on its line running from
Wilkes-Barre to the borough of Sugar Notch. The ordinance by virtue
of which the company was permitted to lay its track and operate its
cars in the borough of Sugar Notch contained a provision that the
speed of the cars while on the streets of the borough should not
exceed eight miles an hour. On the line of the road, and within the
borough limits, there was a large chestnut tree, as to the
condition of which there was some dispute at the trial. The
question of the negligence of the borough in permitting it to
remain must, however, be considered as set at rest by the verdict.
On the day of the accident the plaintiff was running his car on the
borough street in a violent wind-storm, and as he passed under the
tree it was blown down, crushing the roof of the car and causing
the plaintiff's injury. There is some conflict of testimony as to
the speed at which the car was running, but it seems to be fairly
well established that it was considerably in excess of the rate
permitted by the borough ordinance.
We do not think that the fact that the plaintiff was running his
car at a higher rate of speed than eight miles an hour affects his
right to recover. It may be that in doing so he violated the
ordinance by virtue of which the company was permitted to operate
its cars in the streets of the borough, but he certainly was not
for that reason without rights upon the streets. Nor can it be said
that the speed was the cause of the accident, or contributed to it.
It might have been otherwise if the tree had fallen before the car
reached it; for in that case a high rate of speed might have
rendered it impossible for the plaintiff to avoid a collision which
he either foresaw or should have foreseen. Even in that case the
ground for denying him the right to recover would be that he had
been guilty of contributory negligence, and not that he had
violated a borough ordinance. The testimony however shows that the
tree fell upon the car as it passed beneath. With this phase of the
case in view, it was urged on behalf of the appellant that the
speed was the immediate cause of the plaintiff's injury, inasmuch
as it was the particular speed at which he was running which
brought the car to the place of the accident at the moment when the
tree blew down. This argument, while we cannot deny its ingenuity,
strikes us, to say the least, as being somewhat sophistical. That
his speed brought him to the place of the accident at the moment of
the accident was the merest chance, and a thing which no foresight
could have predicted. The same thing might as readily have happened
to a car running slowly, or it might have been that a high speed
alone would have carried him beyond the tree to a place of safety.
It was also argued by the appellant's counsel that, even if the
speed was not the sole efficient cause of the accident, it at least
contributed to its severity, and materially increased the damage.
It may be that it did. But what basis could a jury have for finding
such to be the case; and, should they so find, what guide could be
given them for differentiating between the injury done this man and
the injury which would have been done a man in a similar accident
on a car running at a speed of eight miles an hour or less?
The judgment is affirmed.
As you can see, the defence came up with the lousy argument that
speeding was the main cause. They lost that argument. But the
reason the law swung in the motorist's favor was because the
condition of the tree such that it was questionable that it was
still up at all.
Since the condition of the tree in our case is not determined, my
point in this is that there is as yet no incriminating
evidence.
A lawyer(you implied quite a few times you're at least familiar
with law) such as yourself should know that one should not cast
blame before incriminating evidence surfaces. That is exactly what
you have done. And that is my whole point in this.
If you were to ASSUME the tree was rotten to the core or dead, may
I also assume that it was the car designer's fault not to make the
car tree-proof?
