Appeal, No. 86, Jan. T., 1951, from judgment of Court of Common Pleas of Franklin County, Oct. T., 1946, No. 99, in case of Helen R. Ambrose, Admrx., Estate of Robert V. Ambrose, deceased v. Western Maryland Railway Company. Judgment affirmed.
A. J. White Hutton, with him John A. Smarsh, for appellant.
Paul S. Parsons and Edwin D. Strite, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, Helen R. Ambrose, in her capacity as administratrix, sued Western Maryland Railway Company, defendant, under the Wrongful Death and Survival Acts to recover damages resulting from the death of her husband, Robert V. Ambrose, allegedly due to the negligence of the defendant. Verdicts were rendered by a jury in favor of the plaintiff. The defendant filed a motion for a new trial which was not pressed and a motion for judgment non obstante veredicto which the court granted. This appeal is by the plaintiff from the entry of such judgment for defendant.
Plaintiff's decedent was an employe of the United States Letterkenny Ordnance Depot located in Franklin County close to a railroad yard of the defendant. On July 29, 1945 a number of freight cars whose contents were consigned to the Ordnance Depot were hauled from the railway yard to the Ordnance Depot on tracks
running into the latter by a diesel engine owned by the Federal Government and operated by its employes. On July 30, 1945, the decedent with several other men in the employ of the Ordnance Depot went to unload one of the cars belonging to the Delaware, Lackawanna and Western Railroad, and which had moved under load from Stapleton, Staten Island, New York over four railroads, the Staten Island Rapid Transit, Central Railroad of New Jersey, the Reading Company and the defendant. One of the doors of this car was opened in order to take out the shipping papers, but they could not be reached from that door and, therefore, the door on the other side of the car was opened. Both doors were sealed and the seals intact. After breaking the seals on the second door, it was opened approximately 18 inches or 2 feet. It was necessary to open the door farther to obtain the papers, and the decedent took hold of the handle on the car door and started to push it farther open. As he was doing this the door, which weighed approximately 500 or 600 pounds, fell out and onto the decedent who was so seriously injured that he died the same day. On the day before, July 29, 1945, the car was inspected by a car inspector in the employ of the defendant.
The well considered and exhaustive opinion of the learned trial judge contains a detailed review of the evidence not disputed by appellant or appellee which we quote: "The uncontradicted evidence in the case is: The car was a wooden box car. The door was a corrugated iron door which had rollers at the bottom. The rollers operated on an iron track or a bar attached to the car and the door was held in place by curved irons which hooked under and up around the lower track. At the upper part of the door was a Z-bar attached to the car which formed a groove or channel about one and a half inches deep and one and a half inches wide in which the door was supposed to slide.
The Z-bar was to keep the door from falling outwards, and the door had several small guides of iron which rode on the outside of the Z-bar, preventing the door from falling in and rubbing against the main structure of the car. At the side where the door closed there was about a two inch vertical flange or angle on the door post, the full height of the door opening, which came out at right angles to the car and then turned at right angles and ran parallel to the car an inch to an inch and a half out from it. This formed an offset or groove the full height of the door, known as a cinder guard or spark arrestor, because it prevented any sparks or cinders from entering the car, when the door was closed. The door fitted into this offset when closed and was held in place by a door lock which was sealed with the ordinary railroad seal. The door guides and tracks along the side of the car, beginning at the door post at which the door closed, extended and ran, respectively, along above and below the door opening and past it to the door stop on the car, which prevented the door from sliding beyond the tracks when opened, a distance of 12 feet, 5 1/8 inches. The width of the door was 6 feet 2 3/4, inches. The distance from the top of the bottom rail, on which the door-rollers rested, to the bottom of the upper guide or Z-bar behind which the door was supposed to slide, was slightly different at different places as the upper rail, for some distance, was bent up from 1/8 of an inch to a maximum of 1/4 of an inch and the lower rail at the rear door post was bent down or dented approximately 1/4 of an inch. ...