Appeal, No. 150, Jan. T., 1949, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1947, No. 2413, in case of Carrie Davenport, Trustee ad litem for herself and for Bruce Davenport et al v. The Pennsylvania Railroad Company. Judgment affirmed.
Owen B. Rhoads, with him F. Hastings Griffin, Jr., and Barnes, Dechert, Price & Myers, for appellant.
Richardson Dilworth, with him James A. Sutton, Aaron M. Fine and Paxson, Kalish, Dilworth & Green, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is an appeal from the refusal of defendant's motion for judgment n. o. v. in an action for wrongful death.
Viewed in the light most favorable to the plaintiff, the facts are recited in the opinion of Judge LEVINTHAL in the court below:
"The defendant, Pennsylvania Railroad Company, owned a siding constructed on a coal trestle on premises owned by it and leased to J. M. Bruner & Company, a firm engaged in the coal business. The tracks enter the siding from the northeast and straighten out in an eastwest direction approximately 315 feet from the bumper block which is located at the western end of the trestle.
"At the time of the accident there were catwalks on both sides of the tracks on the trestle. Beneath the trestle were bins for various kinds and sizes of coal. The coal was delivered by the defendant railroad company in cars which were moved onto the trestle and spotted (i. e., placed on an appointed or desired spot: Webster's Collegiate Dictionary; supplied) over the hoppers leading to the proper bins.
"The plaintiff's decedent, Davenport, was the yard foreman for the Bruner Company. Part of his duties consisted of directing the train conductor as to the proper places at which to spot the loaded cars. It was customary for Davenport to go up to the north catwalk of the trestle, where he would join the conductor and give him instructions which the conductor passed on to the switching crew. These operations were usually conducted from the north catwalk because from there the whole length of the train could be observed, and from there the proper alignment of the car hoppers and bin hoppers could best be made. The only way to get from the yard to the north catwalk was by means of a stairway that led from the yard to the south catwalk, then across the tracks to the north catwalk. The crossing had to be made in front of the bumper block since there was no way of passage behind it. In crossing the tracks one could walk directly over them or one might climb up and over the narrow end-sill of a coal car.
"... (There) were three coal cars standing on the trestle. The car nearest the bumper block was loaded with pea coal and was a distance of three or four feet from the bumper block. To the east of the loaded car, and coupled to it, was an empty car, and about half a car length beyond the end of that empty car was another empty one. A shifting engine with six empty cars attached to it came onto the siding. The conductor in charge of the train walked along the north catwalk and conversed with Davenport who was in the coal yard below. Davenport asked the conductor what he had coming in, and the conductor told him he had nothing coming in, but was going to take the two empties out and pull the loaded car up into position. Davenport then said, 'I'll be right ...