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MACK v. READING CO. (07/14/53)

July 14, 1953

MACK
v.
READING CO.



COUNSEL

Richard P. Brown, Jr., Henry R. Heebner and Morgan, Lewis & Bockius, Philadelphia, for appellant.

Lynn L. Detweiler, Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.

Author: Hirt

[ 173 Pa. Super. Page 297]

HIRT, Judge.

Defendant's railroad tracks in the vicinity of Parkland, Pennsylvania, run parallel with U. S. Route 1, on an embankment about 50 feet west of the highway. After dark in the evening of October 21, 1948, plaintiff's tractor-trailer was being driven southwardly on the highway as a freight train on the nearby track was proceeding northwardly. Suddenly and without warning plaintiff's driver observed a dark object, about 30 feet away, rolling diagonally across the pavement directly in the path of the truck. He applied his brakes and swerved the truck but was unable to avoid the oncoming object. On inspection after the collision the driver found that he had run over a coupler which had broken off from a railroad car. The freight train stopped and a separation of about one car length resulted from the loss of the coupler from one of the cars. The steel coupler which was removed from under the truck by the train crew, weighed upwards of 300 pounds and was about 3 feet long. In this action to recover the cost of repairing extensive damage to the truck, the jury found for the plaintiff. Defendant has appealed from the refusal of the court to enter judgment n. o. v. in its favor.

On the trial of the case plaintiff in its proofs did not attempt to charge the defendant with specific acts of negligence but relied upon the doctrine of 'exclusive

[ 173 Pa. Super. Page 298]

    control' of the instrumentality which caused the injury, as evidence of negligence, without more. The lower court submitted the case on that theory and charged the jury in accordance with the rule of Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497, 504, 32 A. 44, 46, 29 L.R.A. 254, to this effect: 'When the thing which causes the injury is shown to be under the management of the defendants, and the accident is such 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'; and further that the circumstances imposed the duty on the defendant to establish freedom from fault. Appellant contends that the doctrine of exclusive control was not applicable and that in any view the lower court erred in submitting the question of actionable negligence to the jury since defendant's evidence of due care was uncontradicted.

The averment of plaintiff's complaint that the 'freight train was under the exclusive control of the defendant' was not denied in defendant's answer and when read into the record became an admission to that effect. Lacaria, Adm'r v. Hetzel, 373 Pa. 309, 96 A.2d 132. Moreover the particular car on the train from which the coupler was broken was within defendant's exclusive control. The doctrine of exclusive control was properly invoked in this case and the controlling consideration here is whether, under all of the circumstances, including defendant's unrebutted testimony, the question of defendant's negligence was one of fact for the jury. The freight train parted because of the breaking of a coupler on a hopper car owned by the Pennsylvania Railroad, which, shortly before, had been turned over to the defendant on car interchange. There is testimony that in accordance with routine practice, the car, after defendant received it, was given a 'Class A' inspection which consists in no more than 'a visual inspection

[ 173 Pa. Super. Page 299]

    of all exposed parts of the car, including both couplers'. The testimony of defendant's inspector is that in making such inspection he found 'no visible defect in the car or couplers'. The conductor, in charge, testified that the train was made up of 92 cars loaded with coal, and the one with the broken coupler was 47 cars from the engine; that the part of the broken coupler remaining in place on the car after the break, by presence of rust on its upper surface indicated an old fracture in the coupler. Another car inspector testified that he examined the car after the event and that the surface of the broken coupler indicated 'a 55% old break or fracture' and that the break had occurred about 14 inches back from the end sill at a point which was not visible from the outside of the car. An inspector general testified that cars which are received on interchange are given the same Class A inspection, without discrimination, as cars owned by the defendant; but that such inspection involves more than observing what can be seen in 'walking around a freight car * * * you have to get down and look up underneath to see what you can see from the bottom and then over the top of the sill, if it is open'.

Appellant strongly relies upon Bradley v. Lake Shore & M. S. R. Co., 238 Pa. 315, 86 A. 200, 201, 44 L.R.A.,N.S., 1148, an action for personal injuries in which a judgment based upon binding instructions for the defendant was affirmed. In that case the plaintiff went to the railway station and, while waiting for an evening train which he intended to take, sat on a truck on the station platform. He was injured when struck by an iron brake bar which broke away, and was hurled violently, from a car on a passing train. The brake bar had been held in place by a cotter pin which the 'jolting or vibration' of the car had ...


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