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September 24, 1947


The opinion of the court was delivered by: GOURLEY

This proceeding was heard before the Honorable Frederick P. Schoonmaker, now deceased, on November 14, 1944, and was assigned to this member of the Court for consideration in April of 1947.

This is an action in trespass instituted in the Common Pleas Court of Allegheny County by Rose A. Peterson, Administratrix of the Estate of Charles A. Peterson, decedent, alleged to have died as a result of injuries received when he was struck by one of defendant's trains on its tracks near the Baltimore & Ohio Railroad Station, at McKeesport, Pennsylvania. The case was subsequently removed to the United States District Court. Plaintiff demanded damages in the sum of $ 25,000. The pleadings upon which this case was tried were the plaintiff's Statement of Claim and the defendant's Answer. At the conclusion of plaintiff's case, defendant made motion for dismissal. The motion was granted.

 On the 23rd day of November, 1944, the plaintiff moved the Court for a new trial and in support thereof assigned the following reasons:

 1. The Learned Court erred in granting the motion to dismiss and withdrawing the case from the jury;

 2. The Learned Court erred in sustaining defendant's motions to exclude testimony sought to be introduced by plaintiff's counsel from Dr. Holland, to which plaintiff's counsel duly excepted.

 The accident occurred on July 17, about 6:30 p.m., in the busiest section of McKeesport, Pennsylvania, on defendant's tracks between its grade crossings located at the intersection of Sinclair Street and Jerome Boulevard, and the intersection of Fifth Avenue and Locust Street. Jerome Boulevard and Fifth Avenue run in an easterly and westerly direction, Fifth Avenue paralleling Jerome Boulevard on the north. Sinclair Street and Locust Street run in a northerly and southerly direction, Locust Street paralleling Sinclair Street on the east. The defendant's tracks cross these thoroughfares at said intersections. The tracks bisect the square made by the intersection and defendant's railroad station is located in the space between these intersections. The tracks cross the Jerome Boulevard intersection on a curve. There are two main tracks, one eastbound and the other westbound. The station is located on the northerly side of the tracks, and a loading platform or baggage platform on the southerly side, along the eastbound track. The decedent was struck at a location near the Boulevard crossing and beyond the station, as he was walking along or across the eastbound track.

 It is admitted by counsel for the plaintiff, and there does not appear to be any question from a reading of the record, that the deceased was guilty of contributory negligence in failing to stop, look and listen before he went on the tracks, and in failing to look and listen as he crossed the tracks. In other words, no negligence existed on the part of the defendant up to the time that it was necessary for the engineer of the train to make an emergency stop. When the deceased was struck by the defendant's train, the left front drive wheel of the engine passed over the right leg of the deceased. After the accident the deceased was lying on the right side of the eastbound track on his back, with his right leg pinioned under the front drive wheel of the locomotive, and the rest of his body on the outside of the engine.

 The right leg was badly mangled as a result of said accident and while lying in the position, the plaintiff's testimony indicates that the deceased was assisted by a person, other than an employee of the defendant, in an effort to extricate him from said position. The plaintiff's testimony is not definite as to what was said by the deceased. One of the witnesses called by the plaintiff stated that the deceased was yelling or hollering to get him out or to remove the right leg from the position in which it was placed. Another witness testified that the deceased had stated to please not run the engine over him again.

 However, after the train had come to a stop, the engineer conferred with three or four other members of the crew relating to the best method of removing the body from under the drive wheel. After this conference the engineer returned to his locomotive and thereupon moved the train in reverse about one foot. The deceased was removed, placed on a stretcher and taken to a hospital where he died the next day. During the whole period of this time the deceased was conscious.

 On the basis of the above facts, the trial judge held that no negligence had been established by the plaintiff on the part of the defendant, and, therefore, granted the motion of judgment for dismissal.

 In addition, the plaintiff offered to prove by the doctor who attended the deceased subsequent to the accident the following:

 1. That the backing of the train, or the movement thereof, from the leg of the deceased contributed to the decedent's shock and resulting death.

 2. That the movement of the train would aggravate the condition of one under the drive wheel of the train, whose leg had not been completely severed.

 It is contended by the plaintiff that the testimony which would have been elicited by an answer to these questions was relevant for the purpose of establishing the extent of the injuries which resulted from the second starting of the train. The Trial Court refused to permit an answer being made to either of said questions for the reason that they were ...

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