Appeals, Nos. 102 and 103, March T., 1951, from judgments of Court of Common Pleas of Armstrong County, Dec. T., 1949, Nos. 39 and 280, in cases of W. Fred Henry, Admr., Estate of Carl M. Zukas, Deceased, etc. v. Pennsylvania Railroad Company, and W. Fred Henry, Admr., Estate of Dorothy Zukas, Deceased, etc., v. Same. Judgments affirmed; reargument refused December 15, 1951.
Harry C. Golden, for appellant.
Robert E. Ashe, with him Charles E. Harrington and E. O. Golden, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
To recover damages under the Wrongful Death and Survival Acts, W. Fred Henry, as administrator of the estate of Carl M. Zukas, deceased, and as trustee ad litem for all persons entitled to recover, brought an action in trespass against the Pennsylvania Railroad Company. The same plaintiff as administrator of the estate of Dorothy Zukas, deceased, and as trustee ad litem for all persons entitled to recover, brought a similar action against the same defendant. The cases were tried together and resulted in a verdict for the plaintiff in each case. Motions for judgment non obstante veredicto were refused, and from entry of judgments on the verdicts, these appeals were taken.
The accident which gave rise to the actions happened on the evening of December 6, 1948, at an alleged permissive crossing over a siding leading from appellant's main line near North Apollo, Armstrong County. The siding is owned by Preston Grimm and Kiski Stores, Incorporated. It is 800 feet long, and, after
leaving the main track in a northerly direction, curves to the northeast, to run roughly parallel to the main track. Adjacent to the east rail of the siding are two buildings, one owned by Preston Grimm near the curve of the siding, the other owned by Kiski Stores, the loading platform of the latter extending 200 feet along the track to the northeasterly end of the siding.
About midway between these buildings and on the land belonging to Kiski Stores is the crossing whereon the accident occurred. To the west of the Kiski Stores building and the siding lies a field which since 1946 had been used for various sports during the summer and fall months. Spectators watched the games, and as many as 50 or 60 at a time congregated on the field. Planks had been laid along the rails at the crossing so that vehicles could be driven over the siding. One approach to the crossing had been covered with ashes to build up a rough roadway. There was testimony that automobiles passed over the crossing conveying spectators to and from the ball field, and a bulldozer used in improving the field traversed the crossing. For a period of three years a nearby storekeeper used the crossing twice a week for the purpose of dumping garbage on the bank of the Kiskiminetas River lying west of the ball field. A witness testified that a photograph introduced into evidence showing the tracks of vehicles leading eastwardly to the crossing substantially represented the appearance of the eastern approach throughout three years prior to the accident.
Decedent, Carl Zukas, and his brother had entered into a written agreement with Kiski Stores which permitted them to build a loading ramp on the west side of the siding to be used in connection with their coal business. Without trespassing upon the land of others, the operation of ...