in part, to the questions which exist in the instant case. As will appear, if these cases are read carefully, they are distinguishable either on the facts or the law as it exists in the Commonwealth of Pennsylvania.
In the case of Weitzman v. Nassau Electric R. Co., 33 App.Div. 585, 590, 56 N.Y.S. 905, a child was struck by a streetcar, landing upon the tender of the car and carried for a considerable distance. The child was seen about 20 feet in front of the streetcar before it was struck. The plaintiff offered to prove that if the car had been properly equipped with mechanical appliances, it could have been stopped within a space of 20 feet. The court refused this offer. The appellate court held that refusal of the offer was error and that it was the duty of the railway company, when the child had been placed in a position of danger on the tender, to have prevented the injury and death of the child if by the exercise of reasonable means it could have done so. Whether or not the railroad discharged its duty should have been submitted to a jury. It is self-evident that in the case just referred to, it is clearly distinguishable on the facts as compared with the circumstances in the instant case, and, therefore, of no value or assistance in approaching our problem.
In the case of Northern Cent. R. Co. v. State, 29 Md. 420, 441, 96 Am.Dec. 545, the deceased was struck by a train of the defendant company and apparently killed. Supposing him to be dead, employees of the defendant caused the body to be locked up in the warehouse of the defendant company. The next morning it was found that the individual had come to life during the night, pulled himself across the warehouse and was lying some distance from where he had been placed. It was held that whatever caused the collision to occur, that thereupon, at once, it became the duty of the defendant, through its agents, to remove the injured person, and to do it with proper regard for his safety. In removing and locking him up, although he was apparently dead, negligence was committed whereby his death was caused, and there is no basis upon which the defendant could be exonerated from the responsibility. This case does not govern or lend any assistance to the issue raised herein.
In the case of American Car & Foundry Co. v. Inzer, Ind. App., 86 N.E. 444, it appears the ruling set forth therein was reversed by the Supreme Court of Indiana, all of which more fully appears at 172 Ind. 56, 86 N.E. 722. The pleadings were amended after the ruling of the Supreme Court and it was again before that court at 53 Ind.App. 316, 101 N.E. 676. In this case the deceased, through his own negligence, was thrown on the tracks of the defendant company and placed in a helpless condition. While the whole of his body was lying upon the tracks, an employee of the defendant company, who had charge of the train, gave an order to the engineer to back the train and, in so doing, the train passed over the body, cutting it in two and causing death. The Supreme Court of Indiana finally sustained a verdict in favor of the estate of the deceased in which it was held that although the deceased was negligent in the first instance, that if the defendant had an opportunity to avoid injuring him to a greater extent, the defendant would be liable under the doctrine of 'last clear chance'. This case is distinguishable on the facts for the reason that the whole of the body of the deceased was on the tracks and on reasonable inspection it should have been known that if the train would have moved, it would have passed over the body. In addition thereto, the doctrine of 'last clear chance' is not recognized in Pennsylvania. Kasanovich, Adm'x, Appellant, v. George et al., Trustee, 348 Pa. 199, 202, 34 A.2d 523.
In the case of Frederick, Appellant, v. Philadelphia Rapid Transit Co., supra, the plaintiff had alighted from the train of the defendant, and for some unexplained reason slipped from the platform into the pathway of the train. The plaintiff presented testimony that the employees of the defendant had been informed that a man was on the tracks. Said employees made a limited examination with a searchlight by looking under one part of the train, and then caused the train to be operated which brought about serious injuries to the plaintiff. The Supreme Court held that it was a question for the jury as to whether or not the defendant had knowledge that a person was underneath the train and if every reasonable effort was extended to ascertain this fact. It was further held that it was the duty of the defendant to locate the man and remove him before restarting the train. This case does not have marked similarities from a factual standpoint; although, in my judgment, the rule of law expressed therein is sound, it cannot be applied to the facts in the instant case.
In the case of Mars, Appellant, v. Philadelphia Rapid Transit Co., 303 Pa. 80, 154 A. 290, the deceased was on the tracks of the defendant company in a lying position when first observed by the operator of a streetcar. The streetcar struck the defendant and when the car was stopped, the individual was pronounced dead. This case under the circumstances has no similarities as compared with the circumstances in the matter now before the Court.
It appears, on the contrary, that the authorities in Pennsylvania in the cases that have a similar analogy all have held that, under circumstances such as exist in the instant case, no liability exists on the part of the railroad company.
It is possible that in the instant case several things might have been done other than backing the engine away from the leg which was pinned under the wheel. Due to the leg being badly mangled, a doctor could have been called and it might have been found advisable to amputate the leg at the scene of the accident. Some mechanical means might have been used, such as an appropriate lift, wreck train equipment brought into use, or other means which the skill and intuition of man might have been able to see if time and opportunity existed to exercise sound, coherent, intelligent and reasonable thought.
I believe that the employees of the railroad company, when confronted with the sudden emergency for which they were not responsible, acted according to their best judgment and although it may be argued that they failed in the most judicious manner, due to the want of time which existed to perform with possibly more sound judgment, said failure, by way of omission or commission, does not constitute negligence such as would justify a right to recover.
The motion for a new trial and the motion to lift the entry of a non-suit are refused. The action of the trial judge in sustaining the defendant's objection to the testimony offered by the plaintiff is sustained.
An appropriate Order will be filed.
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