The opinion of the court was delivered by: JOHNSON
This is a motion to set aside a verdict and to enter judgment for the defendants in accordance with the defendants' motion for a directed verdict, and, in the alternative, a motion for a new trial.
The case was tried before a jury. At the conclusion of the evidence the defendants presented a motion for a directed verdict which was refused. The jury returned a verdict in favor of the plaintiff in the amount of $ 12,000. Counsel for the defendants then filed the motions above stated.
The facts are as follows: The plaintiff, a man sixty years of age, was employed by the Glen Alden Coal Company. The place of his employment was at the Huber Colliery of that company in Luzerne County within the Middle District of Pennsylvania. His duties were those of an operator of machinery at the upper end of a tram-way used to convey rock taken from the mines of the coal company to a rock pile where the refuse was dumped. As the operator of the tram-way he occupied a shanty on the summit of the rock pile. The shanty was located about 2,800 feet from the scene of an accident in which the plaintiff was injured.
The premises of the Glen Alden Coal Company, known as the Huber Colliery, are adjacent to the main line and other tracks of the Central Railroad of New Jersey but are separated therefrom by a six-foot wire fence, except at one point, where, through an opening in the easterly line of the fence, a track known as the switch track enters the Huber yard. The switch track enters through the opening or gate and by a series of switches becomes six separate tracks which serve the colliery. The accident in which the plaintiff became involved took place near the gate, and, although the facts above recited are not disputed, the exact place where the accident occurred and the manner in which it happened became the subject of this action. The premises of the Glen Alden Coal Company, where these tracks are located, were used daily by 1,600 employees in going and coming from work.
The plaintiff testified that he worked on February 3, 1942 on a shift which began at 3:30 P.M. and ended at 10:30 P.M. At about 9:30 P.M. he received word that no more rock would be delivered to him that night and to come down from his shanty on the rock pile and file his report for that shift. It took him about one-half hour to make his way to the place within the colliery yard where he filed his report. It was then about 10 P.M. and he was not permitted to leave the colliery yard until 10:30 P.M. He then proceeded to the parking lot, located at the extreme southeasterly end of the colliery yard to find his son who was to come for him in his automobile. The son had not arrived. The plaintiff then testified that he could not remember whether he had turned off the lights in his shanty. It was a part of his duty to extinguish those lights and the next shift did not begin until 7:00 A.M. He left the parking lot and walked back through the colliery yard seeking a position from which he could see the shanty upon the summit of the rock pile. His line of vision as he walked was blocked by buildings, a lumber pile, a timber pile, cars upon the tracks, smoke from engines and smoke from the colliery works. He testified that he could not see the top of the rock pile until he had passed all of those obstructions. He came to the top of a five-foot bank which sloped downward toward the track on which the accident occurred. At the top of the bank he slipped upon the snow, went down the bank in an erect position and at the bottom of the bank caught his right foot in the switch rails on the southerly side of the track. He was unable to extricate his foot from the rails and as he bent down to unlatch the buckles of his artic in order to release his foot he heard a noise coming from the westerly direction in which he was facing. As he looked up he saw an engine of the railroad company coming toward him in reverse with the tender nearest to him. He could see the face of the operator in a railroaders cap as his head and shoulders protruded from the cab of the engine. He waived and shouted to the man on the engine to indicate his predicament but the engine did not slow down. He testified that the man in the cab was looking directly toward him as the engine continued toward him. He threw himself to one side and the wheels passed over his right leg above the ankle as the engine continued on its way. The engine did not stop after the accident. Relative to the ability of the man in the cab of the engine to see a person on the tracks, the testimony reveals that the premises of the Huber Colliery were so well lighted by flood lights that 'you could pick a bolt up' and the 'place was all lit up'. The plaintiff further testified that he looked around for help and the only person he could see was down the track with a lantern. He then crawled toward a place of safety about ten feet from the place of the accident when the person down the track came in answer to his cries and tied up his foot and ankle with a piece of wire or rope. He then lost consciousness and remembered nothing until he was in the hospital. Other testimony shows that upon arrival at the hospital he was given a large dose of morphine to deaden his pain. The plaintiff testified that when he regained consciousness at the hospital he saw his son and a priest but spoke to no one. His right foot was amputated above the ankle and later a re-amputation resulted in the loss of his right leg above the knee. The plaintiff was corroborated in his testimony by the deposition of his son Zachary, a military way-going witness, who stated that on the day of the accident he drove his father to work and made arrangements to call for him that night. In pursuance of those arrangements he did come for him and while at the parking lot in the Huber yards that night, at the request of the yard foreman, Peter Lucas, assisted another man in starting an automobile.
It was the contention of the defendants that the accident was caused by three freight cars drifting down grade through the gate and that the plaintiff received his injury thereby while standing on the tracks watching the Philadelphia Flyer pass on the main line track.
It should be mentioned at this point that the controversy over whether the plaintiff was inside the gate of the colliery where he was employed or outside the gate in the railroad yard is immaterial under the evidence. If the verdict in this case is permitted to stand it should be pointed out at this time that by the verdict the jury found the defendants negligent and that the negligence under the evidence was wanton. The question whether the plaintiff was a trespasser or not is therefore of no import.
The witnesses for the defendants were composed of the crew of the switching movement, the conductor of another train, a repair supervisor and a car inspector, two employees of the coal company and surveyors and photographers. The testimony of these witnesses will be reviewed.
On the night of the accident defendants' engine No. 301 was engaged in a switching operation. The crew consisted of Murray, engineer; Jordan, fireman; Gaughan and Barrett, brakemen; and Conroy, conductor. The testimony of these witnesses as to the occurrences on that night was as follows: Engine No. 301 with two coal gondolas and three freight cars attached moved in a westerly direction on the tracks of the railroad company through the gate of the Huber yard with the engine headed in an easterly direction. No. 301 then backed up within the colliery yard on track No. 6 where the two coal cars were detached and left standing. The three freight cars, with a 'Wabash' car as the most easterly of the three, were destined for the repair shops of the defendant railroad. In order to place the three freight cars in proper position on the tracks of the repair shops it was necessary to place the engine on the other end of the three freight cars and to push them over to the repair shop ahead of the engine and tender. Having so placed the three cars the engine could then back out of the repair shop tracks and proceed upon other duties. In order to accomplish that movement, after leaving the two coal cars on Track No. 6, the engine was moved down grade in an easterly direction toward the gate until the last of the three freight cars had cleared No. 5 switch. Then No. 5 switch was opened and the three freight cars were backed up on No. 5 track where they were left standing while the engine and tender were detached. The engine was then run down grade toward the gate again to clear No. 4 switch which was then opened so that the engine could back up on track No. 5. The engine was then in such a position that the three freight cars could proceed by gravity down grade, past the engine, through the gate and out upon the plane track. The engine, now behind the freight cars, could then proceed down grade for the third time in the switching movement, through the gate, and couple up behind the freight cars in proper position to push them over to the shop.
It was the contention of the defendants that the plaintiff was injured by the freight cars which were allowed to proceed alone down grade through the gate. In support of that contention defendants produced as witnesses the crew of No. 301, who testified as follows: John Murray, the engineer, that he was on No. 4 track with his engine awaiting a signal from the brakeman that No. 4 switch was set so that his engine could proceed down grade behind the freight cars. He saw the brakeman leave No. 4 switch and proceed down grade toward a place where he, Murray, could see two men with lanterns outside the gate. He then left his engine in charge of the fireman and walked down to the gate 'to see what the trouble was'. When he arrived at the gate the men were 'gone down to the yardmaster's office'. He followed them down there and 'saw the man with the leg off'. He did not take the engine out of the colliery yard for twenty to thirty minutes after that. When Murray left the yardmaster's office he went back to his engine. He testified that when he arrived there he examined the wheels of the engine. He was then asked the following questions on re-direct examination:
'Q. Did you examine the wheels of the tender also? A. No, just the drivers on the one side, the side where it happened, on the left side of the engine.'
'Q. And what did you find if anything? A. I didn't find nothing.'
Later, on re-cross examination he was asked: 'Q. Why didn't you examine the wheels of the tender also?' He answered: 'Because the front wheels would be the ones that would have to do what was done'.
Peter Gaughan, a brakeman, went down to No. 4 switch to throw it so that the engine could get back on No. 4 track. He saw no one on a bank at that place nor one who had slid down a bank. After the three freight cars had gone down the grade, and while he waited at No. 4 switch, John Kehoe called to him from outside the gate. Gaughan ran down and found the plaintiff three or four feet outside the gate. This witness and Kehoe carried the plaintiff to the yardmaster's office in the railroad yard. On cross-examination Gaughan stated that he could see that night from track No. 6 down to the gate. He stated that as he walked down from track No. 6 to throw switch No. 4, so that the three freight cars could drift down grade, he looked down the tracks and saw no one down at the entrance gate. John Kehoe, conductor of another engine, on duty that night in the railroad yards was walking toward the gate of the colliery yard. When he was twenty or twenty-five feet from the gate he saw the three freight cars drifting down grade toward him. He watched the three cars come through the gate and stated that at that time there was no one between him and the gate. After the three cars had passed him he saw a man in a sitting position between the tracks about two feet outside the gate. Kehoe then shouted to the brakeman, Gaughan, to hold his engine. He testified that he then asked the plaintiff what had happened, 'and he said he was watching the passenger train going by and the cars hit him'. Kehoe and Gaughan carried the plaintiff to the yardmaster's shanty where the injured leg was tied up. Kehoe then went back to the gate and examined the rails. He testified that he found blood on the northerly side of the track directly across from where the plaintiff was found by him.
James Jordan, fireman of the switching engine, remained with his engine when the engineer, Murray, said 'There must be something wrong down there * * * you take charge of the engine.' Murray then got down from the cab and walked down the tracks. He saw two men carrying something down towards the yardmaster's office and when they reached the office he could see in the light from the shanty that the two men were carrying another man. Jordan testified that the engine, when Murray left it in his charge to walk down the tracks, was about 150 feet from the gate. He was not sure of the distance and said it was 'just a guess'. He did, however, mark the position of his engine at that time on ...