Appeal, No. 163, Jan. T., 1951, from judgment of Court of Common Pleas No. 3, of Philadelphia County, Dec. T., 1948, No. 1388, in case of Antoinette Turek v. The Pennsylvania Railroad Company. Judgment reversed; reargument refused February 4, 1952.
Philip Price, with him Robert M. Landis and Barnes, Dechert, Price, Myers & Clark, for appellant.
Joseph Matusow, for appellee.
Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
Defendant, The Pennsylvania Railroad Company, appeals from the judgment entered on a verdict of $15,000 in the suit of plaintiff, Antoinette Turek, for personal injuries sustained in the derailment of its train known as the "Red Arrow" on which she was riding as an interstate passenger on a pass containing a release of liability.
Frank Turek, for many years an employe of defendant railroad, was the holder of an annual pass which was valid in a number of eastern states, including Pennsylvania. Also he had obtained a special round-trip pass between Altoona, where he resided, and Detroit, Michigan, for himself and his family. However, after procuring this special pass, Turek found it impossible to accompany his wife and children to Detroit, and they made the trip without him. He came to Pittsburgh from Altoona, met his family on their return from Detroit, and they boarded the "Red Arrow" to proceed to Altoona. At about three-thirty on the morning of February 18, 1947, as the train was negotiating the Bennington Curve, a very sharp curve just west of the Tureks' destination, it left the track, crossed over two westbound tracks and plunged down a steep embankment. The accident resulted in the death of Turek and the severe injury of his wife, the present plaintiff.
In a suit by the administratrix of Turek's estate, under the Survival Act and under the Wrongful Death Statute, this Court affirmed judgments against defendant (361 Pa. 512, 64 A.2d 779). We there stated that since Turek was an intrastate passenger at the time of the wreck, in that he did not cross nor intend to cross state lines, under the law of this Commonwealth a release in a gratuitous pass was ineffective to relieve defendant railroad from liability where lack of due care was shown. We there reiterated what we stated in Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497, 504, 32 A. 44, that "When the thing which causes the injury is shown... as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident arose from a want of care."
That case has no bearing on the instant one, for here, plaintiff, Turek's widow, admittedly was an interstate passenger, riding on a gratuitous pass containing a release of liability, when she received her personal injuries and she cannot recover without a showing of wilful or wanton misconduct on defendant's part: Francis v. Southern Pacific Co., 333 U.S. 445. Therefore, the sole question here is -- Does the present record contain such a showing?
It is set forth in Restatement of Torts § 500: "The actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him." ...