Appeals, Nos. 54 and 55, March T., 1950, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1947, No. 2496, in case of Frances Echon, Admrx., Estate of Peter M. Echon, Jr., Deceased v. Pennsylvania Railroad Company. Judgments affirmed.
Bruce R. Martin, with him Dalzell, McFall, Pringle & Bredin, for appellant.
John E. Evans, Jr., with him Evans, Ivory & Evans and Herbert Jacobson, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Frances Echon instituted this action in trespass against Pennsylvania Railroad Company, appellant, under the Survival Act of 1937 and under the Wrongful Death Statute.*fn1 Decedent was killed when in the process of traversing appellant's tracks over a permissive crossing he fell and was run over by appellant's switching engine. A jury returned a verdict for $4,500 in the survival action and for $4,200 in the death action.
These appeals are from the order of the court below dismissing appellant's motion for judgment non obstante veredicto and the judgments on the verdicts.
Peter M. Echon, Jr. on September 16, 1945, a clear day, about 5 o'clock p.m. entered upon a permissive crossing over appellant's right-of-way at or near the boundary between the adjacent cities of Arnold and New Kensington. At this point appellant company maintains two main tracks and two siding tracks running north and south. Decedent who was 46 years of age and in good health, was entering upon the crossing on the western side of the tracks. The eastern terminus of the permissive crossing was Constitution Boulevard at the foot of North Street. When decedent was about to cross the westernmost track, he fell forward upon the track. The cause of the fall is unknown. He remained prostrate. Thereafter*fn2 the engine which had completed moving two cars southwardly over and past the permissive crossing toward a water tower located on the west side of the tracks sough of the crossing approximately 200 to 225 feet away, commenced backing northwardly. The engine was moving at approximately 2 to 3 miles per hour and continued over the body of decedent, coming to a stop only after the locomotive had completely passed over the body, and Hawk, one of the brakemen riding the front of the engine noticed something hit the footboard on which he was standing and saw decedent's body lying between the rails, whereupon he called to the engineer and signaled him to stop. There was no one riding the stirrup on the rear of the engine's tender nor was there any employe of appellant deployed to determine whether there were any obstructions in the path of the engine as it proceeded to back, or persons who might have been using the permissive crossing at that time. Hawk testified that the bell was sounded "immediately after" the
engine started. However, the decedent was then already lying upon the track.*fn3
A praecipe in trespass was filed September 5, 1947 and the complaint was filed October 2, 1947. The case came on for trial May 25, 1949. One week prior to trial, counsel for appellant advised counsel for appellee of his intention to request leave of court to file an answer asserting the one-year limitation contained in the Act of 1855. Upon request of counsel for appellee, presentation of any motion to the court was postponed until the day of trial. Objection was then made by appellee to allowance of the ...