Geelen v. Pennsylvania R. Co.

• Decision Date: 03 June 1960
• Citation: 400 Pa. 240,161 A.2d 595,91 A.L.R.2d 1
• Parties: , 91 A.L.R.2d 1 Leslie GEELEN, Administrator of the Estate of James David Geelen, Deceased, Appellant, v. PENNSYLVANIA RAILROAD COMPANY.
• Court: Pennsylvania Supreme Court

Page 595

161 A.2d 595

400 Pa. 240, 91 A.L.R.2d 1

Leslie GEELEN, Administrator of the Estate of James David Geelen, Deceased, Appellant, v. PENNSYLVANIA RAILROAD COMPANY.

Supreme Court of Pennsylvania.

June 3, 1960.

Rydesky & Malizia, John E. Rydesky, Joseph J. Malizia, Emporium, for appellant.

A. J. Straub, St. Marys, John D. Gresimer, Emporium, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN and EAGEN, JJ.

EAGEN, Justice.

James David Geelen was killed on a public railroad crossing when struck by one of the defendant's trains. The plaintiff, administrator of the estate, brought a survival action on behalf of decedent's estate and a wrongful death action on behalf of those entitled to recover damages. The jury verdict favored the plaintiff; damages were awarded in favor of the widow, the children, and the estate. The lower court refused to enter judgment non obstante veredicto but did grant a new trial. This appeal questions the legal correctness of the court's new trial order.

The defendant railroad operates trains over a double set of tracks between Emporium, Pennsylvania, and Buffalo, New York. In Shippen Township, Cameron County, Pennsylvania, these tracks cross a public road which leads into the crossing on a steep incline and at a sharp angle. The roadway travels from the south in the same general direction as the tracks for a distance of several hundred feet. From the crossing looking up the tracks in the direction from which the train approached in this case, there is a clear unobstructed view of over eighteen hundred feet. The crossing concerned was in a bad state of repair for two or three months before the day of the accident; a large sized hole having existed in the traveled portion of the roadway due to faulty construction and improper maintenance. A heavy accumulation of snow, allowed to remain on the tracks for more than twenty-four hours before the accident occurred, completely obscured the defective condition existing in the roadway. On the occasion involved, while the decedent was driving his automobile over the crossing, the left front wheel fell into this hole and the motor stalled. He was out of the car attempting to push it from the crossing, when he was struck by a two-unit Diesel engine, pulling one hundred and thirteen cars, and was crushed to death between the train and the automobile.

The court properly rejected defendant's motion for judgment non obstante veredicto. In addition to the above facts there was additional substantial proof which, if believed by the jury, warranted a conclusion of negligence in that decedent's presence on the crossing continued for sufficient time and under such circumstances as to provide the engineer of the train, if sufficiently alert, with knowledge of decedent's perilous predicament and with a reasonable opportunity to bring the train to a stop before it reached the crossing: Kurtz v. Philadelphia Transportation Company, 1959, 394 Pa. 324, 147 A.2d 347; Leghart v. Montour R. Co., 1959, 395 Pa. 469, 150 A.2d 836. The evidence, concerning the faulty condition of the traveled portion of this public crossing, continued in for a long period of time before the accident, was also sufficient, in itself, to warrant a finding of causative negligence on the part of the defendant. A railroad company is under a duty to maintain a public crossing in a state of good repair: Pittsburg, F. W. & C. Railway Co. v. Dunn, 1867, 56 Pa. 280; Pro v. Pennsylvania R. Co., 1957, 390 Pa. 437, 135 A.2d 920. In passing it is interesting to note that the crossing was uncontrolled by signals; it had neither gate nor light. The record fails to disclose sufficient evidence to overcome, as a matter of law, the presumption of due care on the part of the decedent: Hugo v. Baltimore & O. R. Co., 1913, 238 Pa. 594, 86 A. 482.

The court below was, however, also correct in awarding a new trial. In determining whether or not a new trial shall be granted, the court below has great latitude in exercising wide discretion. On appeal such an order will not be reversed unless a palpable abuse of discretion clearly appears or unless an erroneous rule of law, which under the circumstances, necessarily controlled the outcome of the case and is certified by the court below as the sole reason for its action, or without such certification the court's opinion clearly indicates this to be the case: Jess v. McMurray, 1959, 394 Pa. 526, 147 A.2d 420. The granting of a new trial will not be disturbed on appellate review unless the lower court in entering it acted capriciously, arbitrarily or improvidently: Sames v. Wehr, 1953, 373 Pa. 282, 95 A.2d 654.

In the instant case, the decedent's widow was called by the defense for cross-examination and questioned concerning the details of a typewritten statement, the signature on which she acknowledged to be her own, executed about two months after the accident and, containing a recitation of facts which were inconsistent with her lack of memory on the stand and certain proof of the plaintiff as to the details and manner of the occurrence involved. The court admitted this statement into evidence for the limited purpose of affecting her credibility. This was error and, in itself, made a new trial necessary. Decedent's widow, while technically not a party of record in her individual capacity, was a party beneficially and directly interested ¹ and her prior admissions or statements concerning material facts constituted substantive evidence. Such statements, thus proven, should be admitted as substantive proof of the facts asserted therein: Morse Boulger Destructor Co. v. Arnoni, 1954, 376 Pa. 57, 101 A.2d 705. Counsel for the appellant argues that the statement was inadmissible for any purpose since the credibility of the signatory was not in issue, she having made no positive statement on the stand which could be said to have been in any way contradictory to those appearing in the statement and because the scrivener, an employee of the defendant, who was available in the court room, was not called as a witness to prove that the statements recited therein were in fact made. When the witness admitted that hers was the signature on the statement which stated, inter alia, that she had read it, and when she did not deny on the stand that the facts included therein were true or correct, or that she made such statements to the scrivener this without more rendered the statement admissible. The fact that the person, who prepared...