Appeals, Nos. 43 and 44, March T., 1954, from order of Court of Common Pleas of Allegheny County, Jan. T., 1950, No. 1850, in case of Sara Belle Travis, Admrx., Estate of Joseph Dorsey Travis, deceased, v. The Pennsylvania Railroad Company. Order affirmed. Trespass for wrongful death. Before MONTGOMERY, J. Verdicts for plaintiff in the sum of $5000. in survival action, and $50,535.00 in wrongful death action; defendant's motion for judgment n.o.v. refused but new trial granted, before ELLENBOGEN, MONTGOMERY and NIXON, JJ., opinion by MONTGOMERY, J. Defendant appealed.
Bruce R. Martin, with him Dalzell, Pringle, Bredin & Martin, for appellant.
Vincent M. Casey, with him Harry Savage and Margiotti & Casey, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On February 17, 1949, at about 2:30 p.m., Joseph Dorsey Travis, while driving a bread truck, was killed by a southward bound freight train at the South Crossing of the Pennsylvania Railroad Company in the village of Riverton, Madison Township, Armstrong County. In order to enter upon the tracks, Travis was obliged to make a right hand turn from Legislative Route No. 03084 on which he had been travelling. The road at this point makes a sharp descent. At the top and along this descent elderberry bushes, sumac trees and other foliage somewhat concealed (on the day of the accident) the railroad tracks from the view of the traveller.
The administratrix of the estate of the deceased Travis, in her lawsuits against the railroad company in wrongful death and survival actions, averred that the death of her husband was due to the failure of the employes of the railroad company operating the engine which struck Travis to sound an audible warning before approaching the crossing. The defendant company answered that suitable warnings were given and, on this issue of fact, the jury returned verdicts in favor of the plaintiff in both actions. The defendant company moved for judgment n.o.v. and for a new trial. The motion for a new trial was granted and the judgment n.o.v. refused. The defendant appealed.
Upon reading the entire record, we are satisfied that the lower court was fully warranted in refusing a judgment notwithstanding the verdict. The issue involved was strictly one for the jury.
Mrs. Helen A. Catchpole, living 1808 feet north of the South Crossing, testified: "A. Well, I heard the rumble of the train, because it sort of shakes the house, the windows rattle. I watched it for a few minutes because when it is late in the afternoon like that I always watch the train, because my kids crossed there, and kept watching a few minutes. It sort of buckled, stopped, and I have never as yet seen a train do that, so I ran outside, and the other neighbors came running out and said somebody was hit at the crossing. Q. While you were in your house state whether or not you heard any other sound coming from this train than the rumble? A. I heard no whistle, no bell, and it didn't seem to make a chugging noise like most of the trains do. Q. Will you state whether or not you were in position to hear any whistle or bell if one had sounded? A. Oh, if it had blown, I would have heard it. Q. You are positive of that? A. I am positive."
In his brief, counsel for the railroad company states that Mrs. Catchpole did not make "the positive statement that there was no whistle." It will be noted in the above quoted testimony that this witness declared: "Oh, if it [the whistle] had been blown, I would have heard it." An honest person could not make a more positive assertion than that. Without actually being in the engine cab, Mrs. Catchpole could not of her own knowledge say that no one pulled the cord or opened the valve which set off the whistle. However, if one whose hearing is normal, while being in a ...