Dick v. West Penn Railways Company
| Decision Date | 09 September 1943 |
| Docket Number | 33-1943 |
| Citation | 33 A.2d 792,153 Pa.Super. 281 |
| Parties | Dick et al. v. West Penn Railways Company, Appellant |
| Court | Pennsylvania Superior Court |
April 21, 1943, Argued
Appeal from judgment of C. P. Westmoreland Co., Aug. T., 1940, No 282, in case of Samuel J. Dick, trustee ad litem for Samuel J. Dick et al. v. West Penn Railways Company.
Trespass for wrongful death. Before Keenan, P. J.
Verdict and judgment for plaintiff in sum of $ 800. Defendant appealed.
Judgment affirmed.
Robert W. Smith, of Smith, Best & Horn, for appellant.
John W Pollins, with him Edward G. Bauer and Avra N. Pershing, Jr. for appellees.
Before Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt, Kenworthey and Reno, JJ.
At about 5:20 P. M. on June 23, 1939, Marie Shaffer, then of the age of about fifteen (15) years, Betty Barnhart, then of the age of fourteen (14) years, and Norma Jane Dick, eleven (11) years of age on January 3, 1939, having walked in a northerly direction on or along the tracks of the defendant company in Fayette County, Pennsylvania, for some distance, approached a railroad bridge sixty-two (62) feet in length, which carried the single track line of the West Penn Railways Company across a creek or stream known as Redstone Creek.
For approximately nineteen hundred (1900) feet south of the bridge in question, the track of the defendant company was on a descending grade as the street car approached the scene of the accident. For the first fifteen hundred (1500) feet the descending grade was 6%, then reduced to 5%, then to 4%, 3%, 2%, and 1%, and for a distance of approximately one hundred (100) feet short of the bridge, the track was level. Until within approximately two hundred (200) feet from the bridge, the track was straight as the car descended and for the last two hundred (200) feet of the approach the trolley track curved to the right, as is shown by several photographs identified and offered in evidence.
The three girls undertook to cross this bridge. It had not been constructed for use by pedestrians. It was necessary to walk the ties. The right of way over which the railway was operated was owned by the defendant company.
When they had progressed about half way over the bridge, the older girls heard the trolley wires hum, which was evidence to them of the approach of a trolley car. They undertook to run the remaining distance over the bridge. Betty Barnhart attempted to assist Norma Jane Dick. However, when they reached a point, variously testified as from 4 to 12 feet from the north end of the bridge, Norma Jane Dick made a misstep or tripped. As a result her one foot and leg entered the space between the ties, and she was unable to extricate herself even with the assistance of her companion. Marie Shaffer and Betty Barnhart, her two companions, escaped. Norma Jane Dick was struck by the street car and killed. This action was brought to recover damages for her death. A point for binding instructions was refused and a motion for judgment non obstante veredicto overruled. The jury rendered a verdict in favor of plaintiff for $ 800 on which judgment was entered. This appeal followed. The only assignments of error relate to the refusal of binding instructions and the overruling of motion for judgment non obstante veredicto.
Steve McGalla, a passenger in the front part of the car, who sat only two or three feet from the motorman, and could see the motorman and the track ahead down to the trestle and had traveled frequently on this line during the last twenty years, testified that as the car was descending the long grade toward the bridge, the motorman was standing, with one hand on the brake lever; that during the descent he saw the three girls, two of them attempting to pull the third away; that when he first saw the girls the car was in about the middle of the hill, or, as he guessed, about 100 yards away from the girls; that the motorman blew the whistle but made no attempt to apply the brakes until the decedent had been struck and the car had passed over the bridge.
Barbara Crepyna, another passenger on the car, testified that she was looking out of the window as the trolley descended the hill, that there was a blow which did not attract her attention, followed by the application of brakes at "the bottom of the trestle" which did. A third passenger, Margaret Egnot, corroborated the testimony of McGalla on the point that the speed of the trolley car down the grade was neither fast nor very slow.
Marie Shaffer, one of the young girls referred to supra, testified that she tried to extricate the decedent after the latter had slipped and fallen, while Betty Barnhart went ahead to the end of the bridge and made an attempt to flag the approaching car; that she herself continued with her efforts to aid the decedent until she had to jump over the bank to save her own life.
Betty Barnhart added, in her own testimony, that she placed herself in the center of the track where she could be seen by the motorman; that the car was just coming down the hill when she began shouting and gesticulating in an effort to flag the car; that the motorman waved back at her as though warning her to get off the track; and that she, too, was forced to jump over the bank when the car failed to come to a stop.
From the crest of the hill south of the bridge, where there is a public road crossing known as "Phillips", down to the bridge is 1900 feet, and from the road crossing to a few hundred feet south of the bridge the track is straight, according to the testimony of appellant's witness, Beaumont, division engineer for the company. If we take McGalla's testimony that the girls on the track could be seen from the middle of the hill, this distance is 950 feet away from the south end of the bridge, and allowing 50 feet across the bridge to the point where the accident occurred, this would make a distance of 1000 feet.
McGalla did also testify that the distance away from the children, when he first saw them, was only 100 yards. That, however, according to his own statement, was a mere guess and is not as reliable as is his testimony that it was about the middle of the hill. It was the function of the jury to reconcile his varying testimony.
Defendant's motorman stated that he blew the whistle when he saw two of the children, and that he was not more than 175 to 200 feet from the bridge. This would be about 234 feet from the scene of the accident. He further testified that there is a so-called "farm crossing" distant about 175 feet from the southern end of the bridge and that the track is very nearly level from there to the bridge. He stated that he was not quite at the farm crossing when he saw the two older girls, but somewhere between 50 to 100 feet from...
To continue reading
Request your trial