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MILLER v. PENNSYLVANIA RAILROAD COMPANY (11/13/51)

November 13, 1951

MILLER
v.
PENNSYLVANIA RAILROAD COMPANY, APPELLANT



Appeals, Nos. 168, 169 and 170, March T., 1951, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 3537, in case of Mack E. Miller v. The Pennsylvania Railroad Company, Lattavo Brothers, Inc., and Georgianna Karavanic, Admrx., Estate of Gregory M. Karavanic, deceased. Judgment reversed.

COUNSEL

Bruce R. Martin, with him Dalzell, McFall, Pringle & Bredin, for defendant, appellant.

Joseph F. Weis, with him Sherriff, Lindsay, Weis & McGinnis, for additional defendants, appellees.

E. V. Buckley, with him Mercer & Buckley, for plaintiff, appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 368 Pa. Page 508]

OPINION BY MR. JUSTICE BELL

Plaintiff, an employee in a United States mail car, and by virtue thereof a paying passenger on a Pennsylvania passenger train, sued the Pennsylvania Railroad for injuries sustained when the train collided with a truck at a grade crossing near Uhrichsville, in the

[ 368 Pa. Page 509]

    early morning of October 27, 1948. The Railroad Company brought in and joined as additional defendants the owner of the truck and the administratrix of the estate of the deceased truck driver.

The jury returned (a) a verdict for the plaintiff against the Pennsylvania Railroad Company in the sum of $16,000., which was reduced by remittitur to $8500., and (b) a verdict for the defendant truck owner, Lattavo Brothers, Inc., and for the defendant administratrix. The court en banc refused the railroad company's motion for a judgment n.o.v. and for a new trial; and from the entry of judgment on the verdict the Pennsylvania Railroad took this appeal.

In disposing of the motion of the defendant for judgment non obstante veredicto, we have considered the testimony, as we must, in the light most advantageous to the plaintiff, and resolved in his favor all doubts and conflicts therein: Miller v. Hickey, 368 Pa. 317, 81 A.2d 910; McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232.

Considering the testimony in the light most favorable to plaintiff, the jury could have found from the evidence the following facts: Prior to the accident, a bus was following defendant's truck (which was subsequently demolished) along highway Route 36, for about a mile and a half, during which time the truck was going at a speed of 10 or 15 miles an hour. There were two tracks of the Pennsylvania Railroad at Wolf's Crossing, where the accident happened. The train was approaching on the far track. At that time and place there was a thick fog. Red flasher lights were flashing on each side of the tracks. The flasher signals were started by a railway device when the first ...


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