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KRIEGER v. PENNSYLVANIA RAILROAD COMPANY (11/18/57)

November 18, 1957

KRIEGER
v.
PENNSYLVANIA RAILROAD COMPANY, APPELLANT.



Appeal, No. 214, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, April T., 1954, No. 147, in case of Phyllis Krieger v. Pennsylvania Railroad Company. Judgment affirmed.

COUNSEL

John David Rhodes, with him Pringle, Bredin & Martin, for appellant.

Edward O. Spotts, with him Theodore M. Tracy, for appellee.

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

Author: Musmanno

[ 390 Pa. Page 497]

OPINION BY MR. JUSTICE MUSMANNO

On May 4, 1953, Mrs. Phyllis Krieger boarded a train of the Pennsylvania Railroad at Tarentum and rode as far as a station called Aladdin, entering that semi-rural station on a northbound track. In order to reach her pedestrian destination she crossed over the track on which she had arrived to another track known as the southbound track, traversed that track, turned right and moved northwardly by the side of the southbound track toward the gate of the Schenley Distilleries several hundred feet away where she was employed as a plant nurse.

After she had travelled some 125 feet facing normal railroad traffic she was struck by the overhang of a train which came up from behind, that is, the train came north on the southbound track. She sustained

[ 390 Pa. Page 498]

    serious injuries and in the ensuing suit against the railroad company she recovered a substantial verdict.

The defendant railroad company, in view of the verdict of the jury, admits its negligence but asks for judgment n.o.v., arguing that the plaintiff was guilty of contributory negligence as a matter of law because she made no effort to ascertain whether a train would be travelling northwardly on the southbound track. The railroad company contends that even though Mrs. Krieger had the right to assume that no train would be moving in the wrong direction on the wrong track, she should anticipate such a possibility and be prepared accordingly. It is an unusual burden that the defendant would place on the train-riding public.

To concentrate on the unexpected when the expected offers a constant danger of its own is to invite a mishap which can be no less catastrophic for being commonplace. The man who steps into a busy thoroughfare looking into the sky to guard himself against Sputnik would scarcely have an action against the owner of an automobile which struck him while he was ignoring the hazards of the thoroughfare which are constant and commonplace.

In the case of Giulinger v. Pa. R.R. Co., 304 Pa. 140, where the setting was somewhat similar to the situation obtaining in the case at bar, this court said, speaking through Chief Justice MAXEY: "When plaintiffs were struck on the southbound track by a northbound train, they were at least a few feet from the track on which they expected northbound trains to run. If the train that struck them had been running north on the northbound track, it is a fair inference that the truck would not have been struck. The significance of that is this: Their ...


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