Appeal, No. 229, Jan. T., 1953, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1951, No. 3812, in case of Dorothy Slade, Admrx., Estate of James Slade, Jr., deceased v. Pennsylvania Railroad Company. Judgment affirmed; reargument refused February 3, 1954.
Benjamin Bernstein, with him Herbert F. Kolsby and Robert M. Bernstein, for appellant.
Theodore Voorhees, with him George J. Hauptfuhrer, Jr. and Barnes, Dechert, Price, Myers & Rhoads, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
This action of trespass was brought under the Wrongful Death and the Survival statutes to recover for the death of the plaintiff's decedent allegedly caused by the negligence of the defendant railroad company. The jury found for the defendant. The plaintiff moved for a new trial, but the court denied the motion and entered judgment on the verdict. The plaintiff thereupon took this appeal. The sole error assigned is the trial court's exclusion of testimony offered by the plaintiff in rebuttal. An understanding of the circumstances attending the accident is essential.
Washington Avenue in Philadelphia runs east and west and is intersected at right angles by 20th Street. In the middle of Washington Avenue, the defendant railroad company maintains three parallel main running
tracks. There is also a cartway on either side of the avenue along the outside tracks. About 9:30 on a night in December, the plaintiff's decedent, James Slade, a young man of twenty, while running westwardly from 20th Street on the cartway along the south side of the tracks, stumbled and fell across the near rail of the southern track. At the time there was closely approaching from the east on the same track a freight train drawn by a Diesel engine. Before the train was brought to a stop, a part of the engine ran over Slade and killed him. The point of accident was 90 feet west of the 20th Street crossing. The train had been travelling at a speed variously estimated at from 3 to 10 miles per hour. Its bell had been ringing continuously and its headlight was lighted. The theory upon which the plaintiff sought to impose liability upon the defendant was that Slade had fallen across the track so far in advance of the oncoming train that it could have been stopped before reaching him and the accident thus avoided.
Just prior to the accident, Slade and Betty Waters, his basketball coach, had been walking north on the east side of 20th Street toward the Washington Avenue grade crossing. According to Betty, they "were coming home from a basketball game." Both resided north of the Washington Avenue crossing. When they got to Alter Street, which is the first street south of Washington Avenue, Slade said, "Miss Waters, I am in a hurry." He then "trotted" across to the west side of 20th Street and ran north to the cartway on the south side of Washington Avenue where he turned west onto the cartway along the southern railroad tract as already described.
In an effort to counteract a very compelling inference from other evidence in the case that Slade had tripped on a ...