Appeals, Nos. 49 and 50, March T., 1955, from judgments of Court of Common Pleas of Beaver County, June T., 1953, Nos. 300 and 310, in cases of James D. Ault, a minor, by D. W. Ault, his guardian, v. The Pennsylvania Railroad Company; and of The Beaver Trust Company, Admr., Estate of Clarence B. Ault, deceased, v. same. Judgments affirmed.
Earl J. Schermerhorn, with him Samuel C. Holland, Smith & Schermerhorn, and Reed, Ewing & Ray, for appellants.
Clyde Holt, Jr., with him Clyde Holt, Sr. and Holt & Holt, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
This is a death and survival action for damages arising out of the death of Clarence B. Ault. The court entered a compulsory non-suit which it refused to take off, and this appeal followed.
On the 26th day of May, 1952, between 2:00 and 3:00 o'clock P.M., the Ford sedan of Clarence B. Ault and
the bodies of himself and his wife were found on the tracks of the Pennsylvania Railroad beneath what is known as the Summit Cut Bridge, which bridge is about 73 feet above the tracks and spans the tracks at approximately right angles. The bridge was constructed and maintained by the Pennsylvania Railroad to carry traffic from the highways at the northern and southern approaches to the bridge. The bridge is of wooden construction, 110 feet long, and has a cartway of 14 feet.
On the east and west sides of the cartway are curb logs 6" wide and 4" high, raised on sleepers 2 1/2" from the floor. Two wooden midrails 2" X 6" are fastened to vertical posts, the tops of which are 18 1/2" and 26 1/2" respectively from the floor of the bridge. A wooden top rail 6" X 6" is fastened to upright posts. The upright posts were 5 feet apart, and were bolted to the floor beams of the bridge by two three-quarter inch bolts.
At approximately 1:00 o'clock P.M. on the day of the accident, the decedent and his wife left the home of his father to go to their home, a distance of about 8 miles. To reach the bridge, about 6 1/2 miles distant, he would travel over a state highway to the north end of the bridge and then would turn at a 90 degrees angle to cross the bridge.
Quite apparently the car left the bridge on the right hand side at the fourth post of the guardrail, between 15 and 20 feet from the entrance of the bridge and on the west side thereof. Eight vertical posts and all the guardrails were torn out, leaving a hole about 30 feet in width. Thus, from the time decedent started to make his right hand turn to enter the bridge, he had to make a complete semicircle in order to crash through the west side of the bridge. The ...