Norman v. Norfolk & W. Ry. Co.

Citation228 Pa.Super. 319,323 A.2d 850
PartiesWallace E. NORMAN v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.
Decision Date21 June 1974
CourtSuperior Court of Pennsylvania

Page 850

323 A.2d 850
228 Pa.Super. 319
Wallace E. NORMAN
v.
NORFOLK AND WESTERN RAILWAY COMPANY, Appellant.
Superior Court of Pennsylvania.
June 21, 1974.

Page 851

[228 Pa.Super. 321] CERCONE, Judge.

This is an appeal by defendant, Norfolk & Western Railway, from the lower court's refusal to grant its preliminary objections to a complaint in trespass filed by plaintiff, Wallace E. Norman.

The complaint alleges a violation by defendant of the Federal Employers Liability Act (F.E.L.A.), 45 U.S.C. § 56 (1964), as amended, 1 which violation purportedly resulted in injury to plaintiff at or near Stone, Kentucky.

Defendant's preliminary objections were in a nature of a petition raising a question of venue under the doctrine of forum non conveniens and under Rule 1006(d) of the Pennsylvania Rules of Civil Procedure, 2 12 P.S. Appendix, and were presented as a request for a dismissal of the case in Allegheny County so that it could be brought in the appropriate forum in West Virginia or Kentucky. The defendant also stipulated that it would waive the statute of limitations if the court granted its preliminary objections and dismissed the case.

Plaintiff filed an answer to defendant's preliminary objections and a hearing on the question of 'transfer' was held before the lower court, without a jury. No testimony was offered at the hearing; however, certain evidentiary matters were urged by counsel for both sides and considered by the court. Upon consideration of [228 Pa.Super. 322] these matters the lower court dismissed defendant's preliminary objections and indicated that it based its decision mainly on plaintiff's right to choose a forum and the fact that his significant medical treatment had been provided in Allegheny County. This appeal followed. 3

Page 852

The facts in this case are as follows. The defendant is a railroad corporation, duly organized and existing under the laws of Virginia and having its principal place of business in Roanoke, Virginia. It regularly conducts business in Western Pennsylvania as part of its multi-state rail network primarily on a branch line from Brewster, Ohio to Connellsville, Pennsylvania. Its main business is transacted in states south of Pennsylvania. It also operates a branch line in and near Stone, Kentucky, the site of plaintiff's injuries, and has offices in and near Williamson, West Virginia. The communities of Stone and Williamson are one mile apart.

Plaintiff, Mr. Norman, is a resident of Kentucky although his mailing address is Williamson, West Virginia. At the time of the accident he was employed by N & W as a brakeman and on October 1, 1970, was injured at Stone, Kentucky, when in the process of coupling together air hoses his right foot slipped, allegedly on iron ore or coke pellets located on a track tie between the cars he was working on, causing him injury to his lower back and legs.

[228 Pa.Super. 323] While there are no eye witnesses to the alleged incident, there are five witnesses who were near the scene of the accident at the time it occurred who, allegedly, are familiar with the ground condition at the time and at the point plaintiff fell. These witnesses, according to defendant, will be able to testify as to their personal observations of plaintiff's condition after the accident and as to what he said subsequently relative to the accident. In addition, there are two other witnesses who were also familiar with the ground conditions in the area before and after the accident and will testify that N & W had no advance notice of any dangerous conditions in that area. All seven of these witnesses, allegedly, will also testify as to the proper method to be applied in coupling air hoses.

All these witnesses reside near plaintiff's home in the vicinity of Stone, Kentucky and Williamson, West Virginia, which are located approximately 340 miles from Pittsburgh. Due to the distances involved, all of these witnesses reside beyond the subpoena power of the Court of Common Pleas of Allegheny County.

After the alleged accident plaintiff received medical evaluation and treatment initially at a clinic in South Williamson, Kentucky under the care of Dr. Fred W. Wampler who rendered a preliminary diagnosis and prescribed medication. Four days later Mr. Norman began an intensive series of examinations and treatments with Dr. Duane A. Schram and received treatments at the Appalachian...

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