Dalzell, McFall, Pringle & Bredin and Bruce R. Martin, all of Pittsburgh, for appellant.
Ralph S. Davis, Jr. and Evans, Ivory & Evans, all of Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold, and Gunther, JJ.
[ 169 Pa. Super. Page 524]
This is an action of trespass brought to recover for personal injuries sustained by the plaintiff while he was riding as an intrastate passenger on a train owned and operated by the defendant. The jury returned a verdict in plaintiff's favor and after the defendant's motion for judgment n. o. v. was refused by the court below, it took this appeal.
The plaintiff was injured on October 6, 1948, when the train on which he was riding was derailed due to a rock slide from a hillside adjoining the defendant's tracks. The hillside from which the rock fell to the defendant's tracks is a part of its right of way and is maintained by it. The cut, starting at track level, consists of a layer of sandy shale rising from the roadbed to a height of six feet. Above this sandy shale, and protruding trackward to form an overhang of about three and one-half feet from the side of the cliff, is a layer of massive sandstone twelve feet thick. The next layer or stratum is also a sandy shale which varies in width. From there to the top of the cut are various types of sandstone rock. The landslide or rock fall which caused the derailment came from the massive sandstone overhang, and consisted of about 85 tons of rock which were scattered over the entire right of way. Prior to the accident rocks which had fallen from the hillside were observed in the ditch beside the
[ 169 Pa. Super. Page 525]
rails at various times over a period of four years. The fact that rocks had fallen to the ditch was known to the defendant's track supervisor.
The plaintiff was at the time of the accident, and had been for a number of years, an employe of the defendant and at the time of the accident he was riding an employe's pass containing the usual restrictions against liability. The release of liability provision deprived the plaintiff of the aid of the doctrine of res ipsa loquitur accorded paying passengers and cast upon him the burden of affirmatively proving defendant's negligence. Turek v. Pennsylvania Railroad Co., 361 Pa. 512, 64 A.2d 779. The negligence in this case upon which the plaintiff bases his right to recover is that the defendant failed to maintain its right of way in a reasonable and safe condition.
While, of course, it is well settled that the mere happening of an accident does not establish negligence, it is equally well settled that negligence may be inferred from the circumstances attending an accident. Turek v. Pennsylvania Railroad Co., supra; Bills v. Zitterbart, 363 Pa. 207, 69 A.2d 78; Noyes v. Sternfeld, 164 Pa. Super. 461, 65 A.2d 433.
In determining the question as to whether judgment n. o. v. should be entered for the defendant, the plaintiff is entitled to a review of the evidence in the light most favorable to him and to the benefit of every doubtful or obscure fact and the reasonable inferences that a jury might deduce therefrom, McCreery v. Westmoreland Farm Bureau Co-operative Ass'n, 357 Pa. 567, 55 A.2d 399, and he is further entitled to have the evidence ...