Zych v. Pennsylvania Railroad Company

• Decision Date: 05 December 1958
• Docket Number: Civ. A. No. 1853.
• Citation: 168 F. Supp. 849
• Parties: Hazel M. ZYCH, Widow of Louis Carl Zych and Hazel M. Zych, Administratrix of The Estate of Louis Carl Zych, deceased, v. The PENNSYLVANIA RAILROAD COMPANY, a corporation of the Commonwealth of Pennsylvania.
• Court: U.S. District Court — District of Delaware

168 F. Supp. 849

Hazel M. ZYCH, Widow of Louis Carl Zych and Hazel M. Zych, Administratrix of The Estate of Louis Carl Zych, deceased, v. The PENNSYLVANIA RAILROAD COMPANY, a corporation of the Commonwealth of Pennsylvania.

Civ. A. No. 1853.

United States District Court D. Delaware.

December 5, 1958.

William Prickett, Jr., of Prickett & Prickett, Wilmington, Del., and Richter, Lord & Levy, Philadelphia, Pa., for plaintiff.

Joseph H. Geoghegan, of Berl, Potter & Anderson, Wilmington, Del., for defendant.

LAYTON, District Judge.

This is an accident case in which the decedent was killed as the result of a collision between his automobile and defendant's train. Motions to dismiss and for summary judgment have been filed.

Upon consideration, I have concluded that the motion to dismiss is not sufficiently meritorious to justify discussion. It is denied.

The motion for summary judgment raises an interesting question, however. The administratrix claims damages, inter alia, for decedent's pain and suffering prior to death. The motion seeks to delete all such damages from the jury's consideration upon the ground that decedent died instantaneously.

An authoritative statement of the law governing such situations may be found in L.R.A.1916C, 973, at page 981. There it is stated:

"To authorize the recovery of damages for pain and suffering there must be some appreciable interval of conscious suffering after the injury. Such pain and suffering as are substantially contemporaneous with death, or mere incidents to it, as also the short periods of insensibility which sometimes intervene between fatal injuries and death, afford no basis for a separate estimation or award of damages * * * the mere fact that there is some slight spasmodic action of the body of the injured person to indicate that life is not entirely extinct is not sufficient to prevent the death from being instantaneous."

See also Great Northern Ry. Co. v. Capital Trust Co., 242 U.S. 144, 37 S.Ct. 41, 61 L.Ed. 208; St. Louis, Iron Mountain & S. R. Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160.¹

The facts of the case as related by deposition and affidavit are these: When the car and train collided, the former was knocked off the road a number of feet, the door opened and decedent's body was tossed out. As he fell, his head hit a fence post crushing the head. All persons who came upon the body just after the accident seem to agree that decedent was unconscious. One heard him moan; another did not but saw his chest expand and heard a gasp. They felt his pulse and there was none....