Appeal, No. 79, March T., 1952, from judgment of Superior Court, April T., 1951, No. 52, affirming judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 3043, in case of William L. Fuller v. The Pennsylvania Railroad Company. Judgment reversed.
Bruce R. Martin, with him Dalzell, Pringle, Bredin & Martin, for appellant.
Ralph S. Davis, Jr., with him Evans, Ivory & Evans, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The sole issue in this case is whether there was sufficient evidence on which the jury could have found that defendant was negligent. After a jury verdict in favor of plaintiff for $2,000, the court of common pleas denied defendant's motion for judgment non obstante veredicto and judgment was entered on the verdict. On
appeal the Superior Court affirmed and this Court granted an allocatur.
In the early afternoon of October 6, 1948, plaintiff, while riding in the first coach of an interstate passenger train and (according to his testimony which was disputed), going from Pittsburgh to Beaver Falls, Pennsylvania, was injured when the train struck a fall of rock approximately 350 to 400 feet west of West Bellevue Station. Plaintiff at the time was riding on an employe's pass and, by its verdict, was found by the jury to have been on an intrastate trip.
Plaintiff first produced as witnesses two police officers who testified insubstance that they heard the crash and, upon arriving at the scene, they observed rocks along the side of the right-of-way and that some of the rocks in the cut through which the railroad passed were about five or six feet from the track. Officer Andres testified that between the dates of July 7, 1948 and October 6, 1948 he saw rocks along the tracks about two or four inches to a foot in diameter. He said that he never saw any water coming from the hillside near where this accident occurred. He said that he noticed cracks in the hillside but would not say that they were near the place where the accident happened. Officer Gibbs testified that there was a five or six foot clearance between the trains and the rock formation and that on previous occasions he saw rocks at least a foot in length lying in the ditch alongside the track. He further testified that he saw longitudinal cracks in the rocks but that he couldn't be sure that they were in the particular area of the fall and he had seen water seeping from the cracks which would freeze in the wintertime and form ice.
The next witness for the plaintiff was Robert S. Stewart, a geologist, who a few days before trial examined the area and made a sketch or cross-section of the rock formation there present. This sketch showed
a formation of sandy shale at the bottom, an area of about 10 or 12 feet or massive sandstone immediately on top of that, another small area of sandy shale, a large area of broken sandstone which was in slabs averaging 4 or 5 inches, and then sand, gravel, soil and filled ground on the top of the hill which formed the cut.*fn1 He estimated the hill to be 85 feet high. He explained generally that in any case where rock is exposed over the years weathering takes place in that the water seeps down through the cracks in the rocks and in freezing and thawing forces the rocks to have larger cracks between them and eventually fall. Stewart said that when he examined the formation he saw water where the fall had taken place.*fn2 Upon being asked, "Would the fact that these rocks may fall down after weathering and erosion be apparent to anyone walking along the track?", he replied, "I would say that a qualified observer should be able to pick out the probable places. He couldn't say when it would fall." He was then asked to explain what he meant by "qualified observer" and replied, "Someone who is familiar with the action of an open face or an open cliff."*fn3
Hugh F. Baird, an employe of the defendant as fireman and engineer, called by the plaintiff, testified as follows: He was an engineer on trains which operated through this area and was riding in the first car behind
the engine on the day of the accident. The train at the time was going between 60 and 65 miles an hour. He estimated the distance from the cab of the engine to the hillside as varying between 6 feet and 30 feet. He stated that the defendant in other cuts had erected signal fences (later referred to by other witnesses as slide fences) but that none had been placed on the hills in this cut. He also stated that he had seen rocks lying in the ditch beside the track at different times. On cross-examination he said that the black signal was better than one-half mile from the place where the wreck occurred, that he had seen men scaling the loose rock, that he did not know how the loose rocks got in the ditch and that he had never seen rock blocking this track before.
Herbert C. Atkins, Chairman of public safety for the Borough of Bellevue, and a former fireman and engineer for the railroad, testified concerning the operation and use of slide fences. He described them as netting stretched between two posts which was connected to either a wayside or bridge signal and if a rock rolled against the netting a cautionary signal would appear on the wayside or block signal. On cross-examination he admitted that this slide fence would not prevent an accident if the slide occurred after the train passed the signal to which the slide fence was connected.
The next witness for the plaintiff was Clinton P. Sipe who was the supervisor of track for this area employed by the defendant. He stated that the height of the cut was 100 to 120 feet. He gave the distance from the track to the side of the cut as varying between 8 and 20 feet. He said about 85 tons of rock fell at the time of the accident. Regarding slide fences, Sipe stated that none were erected in this area. He said that there was a spring about 200 feet west of the
point of the slide and explained that during heavy rains he had reports of rocks falling from the clay soil on the top of the hill but never had a report from anyone of stones or rocks falling from the face of the cut. At various times, he testified, men scaled the loose rock from the cut. The last time this area was scaled was June 26th but it had been "tested" on October 4, 1948, two days before the accident, and the men who were working there at that time ate their lunch under an overhang of rock of about 3 1/2 feet*fn4 which was near the point of the slide and which fell at the time of the slide. He described the scaling operation in detail and testified that after scaling, the rocks which were taken from the hillside were placed in the ditch along the tracks and that periodically a train would clean out the ditch, thus accounting for the rocks seen there. He testified that employes of the railroad company known as the hillside gang ...