Starovetsky v. Pennsylvania R. Co.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: LINN, Justice.
• Citation: 195 A. 871
• Decision Date: 03 January 1938
• Parties: STAROVETSKY v. PENNSYLVANIA R. CO.

195 A. 871

STAROVETSKY
v.
PENNSYLVANIA R. CO.

Supreme Court of Pennsylvania.

Jan. 3, 1938.

Appeal No. 294, January term, 1937, from judgment of Court of Common Pleas

195 A. 872

No. 5, Philadelphia County, March term, 1935, No. 6531; Harry E. Kalodner, Judge.

Trespass for death of plaintiff's husband, by Anna Starovetsky against the Pennsylvania Railroad Company. Verdict and judgment for plaintiff for $10,000, and defendant appeals.

Reversed and judgment entered for defendant.

Argued before SCHAFFER, DREW, LINN, STERN, and BARNES, JJ.

Philip Price and Barnes, Biddle & Myers, all of Philadelphia, for appellant. Milford J. Meyer, Robert M. Bernstein, and Levi, Mandel & Miller, all of Philadelphia, for appellee.

LINN, Justice.

Defendant appeals from judgment on a verdict for the death of plaintiff's husband, found lying on defendant's tracks about 3:30 a. m., May 6, 1934, so fatally injured that he died without regaining consciousness. No eyewitnesses appeared. The manner of his injury is purely conjectural.

Defendant asserts there is no evidence of negligence and that the record clearly shows decedent's contributory negligence. As we all agree with the second contention, we need not consider the first. Defendant's motion for judgment n. o. v. should have been granted.

Decedent lived in the borough of St. Clair, composed of two collections of houses, one located on the east side of defendant's railway tracks, which extend north and south. The other collection of houses, known as Arnot's addition, was on the west side of the tracks either on the high bank along the railroad or beyond the bank, the record does not show which. Hancock street leads from the village on the east side to Arnot's addition, passes under the defendant's tracks, and furnishes a safe way to go from one to the other. Decedent lived on the east side of the tracks and when last seen was on that side at about midnight. The only train that moved on the tracks during the night passed the village at 2:00 a. m.; it is this train which must have injured him. A small station is maintained by defendant at or near the point where Hancock street passes under the tracks. Decedent was found at a point about 200 feet north of the station. To reach the station and the tracks in front of it, decedent must have left Hancock street and ascended to the level of the railroad tracks. He was not an intending passenger, was not employed by defendant, and, so far as appears, sustained no...