Fornelli v. Penna. R.R. Co.

• Decision Date: 28 November 1932
• Docket Number: 162
• Citation: 164 A. 54,309 Pa. 365
• Parties: Fornelli v. Penna. R.R. Co., Appellant
• Court: Pennsylvania Supreme Court

164 A. 54

309 Pa. 365

Fornelli v. Penna. R.R. Co., Appellant

No. 162

Supreme Court of Pennsylvania

November 28, 1932

Argued October 6, 1932

Appeal, No. 162, March T., 1932, by defendant, from order of C.P. Allegheny Co., Jan. T., 1930, No. 3109, granting new trial, in case of May Fornelli, amended to read May Augustine v. Pennsylvania R.R. Co. Reversed.

Trespass for death of plaintiff's husband. Before STADTFELD, J.

The opinion of the Supreme Court states the facts.

New trial granted to plaintiff. Defendant appealed.

Errors assigned were refusal of binding instructions, and granting of new trial, quoting record seriatim.

The order of the court below is reversed, the verdict for defendant is reinstated, and judgment is here entered upon the verdict.

Samuel W. Pringle, with him Dalzell, Dalzell, McFall & Pringle, for appellant. -- The accident was caused by the negligence of decedent: Bardis v. Ry., 267 Pa. 352; Sweatman v. R.R., 264 Pa. 286; Bass v. R.R., 303 Pa. 382.

Where it clearly appears that the court below, in ordering a new trial, bases its decision on a plain and palpable error of law applicable to the facts of the case, it is such an abuse of discretion as will warrant a reversal: Class & Nachod Brewing Co. v. Giacobello, 277 Pa. 530; Danboro &amp Plumsteadville T. Road Co. v. Bucks County, 258 Pa. 391.

Robbin B. Wolf, of McCreery & Wolf, for appellee. -- Neither party having filed a motion for judgment following the verdict, the only matter before the court below and consequently the only matter before this court at this time on appeal, is the order granting a new trial: March v. Traction Co., 285 Pa 413; Pyle v. Finnessy, 275 Pa. 54; West v. Ins. Co., 277 Pa. 102.

The appellate court will disturb the right of the court below to grant a new trial only in the event of a palpable abuse of discretion: Joyce v. R.R., 230 Pa. 1; Cuteri v. Penn. Ry, 305 Pa. 347; Bailey v. Lavine, Inc., 302 Pa. 273; Lombardo v. Barilla, 302 Pa. 460; Class & Nachod Brewing Co. v. Giacobello, 277 Pa. 530.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE DREW:

Plaintiff's husband, Albert Fornelli, was struck and killed by a locomotive owned and operated by defendant in the plant of the Shenango Furnace Company at Sharpsville. After a verdict for defendant, the court below granted a new trial because of alleged inadequacies in the charge. From that order defendant appealed, assigning as error the refusal of its motion for binding instructions and the granting of plaintiff's motion for a new trial. Plaintiff married again after this suit was entered, and the record was accordingly amended.

Fornelli, for more than twelve years, was employed by the furnace company as foreman in charge of laborers whose duty it was, among other things, to unload iron ore from railroad cars on one of two parallel elevated tracks running east and west in the company's plant. He was very experienced in his duties, which included ordering loaded cars brought into the yard, seeing them placed and unloaded, passing the empty cars out of the yard, and keeping watch over the men doing the work, so as to warn them of the approach of the cars.

On the morning of the accident, Fornelli was superintending the work of laborers unloading ore from cars standing on one of these tracks -- the south track. The tracks were about nine feet apart and were on a slight grade. Between them was a boardwalk about two feet wide, the space between the walk and the north track being filled with ore approximately to the level of the walk. Just prior to the accident defendant's locomotive, running backward with tender in front and pulling several cars, entered the north track, at a point several hundred feet from Fornelli, and proceeded in his direction. Neither whistle nor bell was sounded, but the train was running at a very low rate of speed, and was in clear view of Fornelli and his men. Fornelli, standing near the inner rail of the north track, facing the cars his men were unloading on the south track, was struck and knocked down by the running board of the tender, the wheels of which passed over his body and killed him almost instantly. In this statement we have given plaintiff the benefit of all facts and reasonable inferences in her favor that can be drawn from the evidence.

It is clear that Fornelli was guilty of negligence. He did not keep a proper lookout immediately prior to the accident, with the result that he brought himself into contact with the engine he knew was operating on that track. He disregarded his plain duty of protecting himself and his men. He had given the order for the movement of the train; it was...