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KILLEN v. PENNSYLVANIA RAILROAD COMPANY (01/11/54)

January 11, 1954

KILLEN
v.
PENNSYLVANIA RAILROAD COMPANY, APPELLANT



Appeals, Nos. 117 and 118, March T., 1953, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 470 and January T., 1949, No. 3537, in cases of Lloyd K. Killen V. Pennsylvania Railroad Company and Mack E. Miller v. Same. Judgments affirmed.

COUNSEL

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

Joseph F. Weis and E. V. Buckley, with them Joseph F. Weis, Jr., Sheriff, Lindsay, Weis & McGinnis and Mercer & Buckley, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 376 Pa. Page 321]

OPINION BY MR. JUSTICE BELL

Each of the judgments is affirmed on the following opinion of Judge O'BRIEN, speaking for the Court en banc.

"Lloyd K. Killen and Mack E. Miller, while in the course of their employment as employees of the United States Postal Service, were riding in a postal mail car on defendant's train in the vicinity of Uhrichsville, Ohio, on the morning of October 27, 1948. The plaintiffs were paying passengers of the defendant railroad company. The plaintiffs sued the Pennsylvania Railroad Company for injuries sustained when the train collided with a truck, heavily laden with steel at Wolf's

[ 376 Pa. Page 322]

Crossing. The Railroad Company brought in the additional defendants.

"The case of Mack E. Miller against the Railroad Company and the additional defendants was tried previously, resulting in a verdict against the Railroad Company alone. In that action the Railroad Company moved for judgment n.o.v. and for a new trial. When both motions were refused by the court below, the Railroad Company took an appeal to the Supreme Court (Miller v. Pennsylvania Railroad Company, 368 Pa. 507) where judgment n.o.v. was refused but a new trial was granted to all the parties. In refusing judgment n.o.v. the Supreme Court said at pages 512; 513: '... But the question still remains -- considering the fog and the position of the truck when the flasher lights went on, was the defendant's warning timely and sufficient?'. '... If plaintiff's evidence clearly showed that the truck driver saw the flasher lights and ignored them, the railroad would have given timely and sufficient warning of the train's approach, the negligence of the truck driver would have been the proximate cause of the accident, and the Railroad Company would be entitled to a judgment n.o.v. The evidence on this point was confused, but we believe was sufficient to allow the jury to legitimately infer that the flasher lights could not have been seen by the truck driver; and therefore the court below properly refused defendant's motion for judgment n.o.v.'

"The Miller case was consolidated with the Killen case and both were tried before O'BRIEN, J. and a jury, resulting in verdicts for the plaintiffs against all of the defendants. The defendants filed motions for judgment n.o.v. and that matter is now before the court.

"We are bound in the consideration of such motions of the defendants for judgment n.o.v. to consider the testimony in the light ...


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