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HYNDMAN v. PENNSYLVANIA RAILROAD COMPANY (05/08/59)

May 8, 1959

HYNDMAN
v.
PENNSYLVANIA RAILROAD COMPANY, APPELLANT.



Appeals, Nos. 377 and 378, Jan. T., 1958, from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1954, No. 2686, in case of Ronald Kenneth Hyndman, a minor et al. v. The Pennsylvania Railroad Company. Judgment affirmed; reargument refused July 2, 1959. Trespass for personal injuries. Before ALESSANDRONI, P.J. Verdict for minor plaintiff in amount of $65,000 and for natural guardian in her own right in the amount of $7,000, defendant's motions for judgment n.o.v. and for new trial dismissed, and judgment entered on the verdicts, opinion by WEINROTT, J. Defendant appealed.

COUNSEL

Theodore Voorhees, with him Gordon W. Gerber, and Barnes, Dechert, Price, Myers & Rhoads, for appellant.

Elwood S. Levy, with him Charles A. Lord, Seymour I. Toll, and Richter, Lord & Levy, for appellees.

Before Jones, C.j., Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Cohen

[ 396 Pa. Page 192]

OPINION BY MR. JUSTICE COHEN

This is an action in trespass brought by Ronald Kenneth Hyndman, a minor, by his mother Elizabeth W. Hyndman as his guardian and in her own right, against the Pennsylvania Railroad Company (appellant). The minor appellee suffered serious electrical burns when he came in contact with a portion of the transformer apparatus housed on a platform affixed to appellant's catenary pole near Langhorne, Pennsylvania, along the railroad right-of-way. The jury returned a verdict in favor of plaintiffs.

This is an appeal from a denial of defendant's motion for a new trial and for judgment n.o.v.

It is a well established rule that in considering motions for judgment n.o.v. the court must consider the evidence in the light most favorable to the appellee resolving all conflicts in his favor and giving him all favorable inferences usually adducible from the evidence. Bartleson et al. v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846 (1949); Phillips v. Philadelphia Transportation Co. et al., 358 Pa. 265, 56 A.2d 225 (1948). The following facts amply supported by the record could have been found by a jury.

At the time of the injury, the minor appellee was eleven years and seven months of age. He was a tenderfoot with a boy scout troop which occupied a regular camp site about twenty-five feet from the railroad's right-of-way. This camp was located approximately fifty feet from the catenary pole where the injury occurred.

[ 396 Pa. Page 193]

The pole was a steel column, fourteen inches square imbedded in a concrete foundation located about eight feet from the nearest track rail. It had a metal ladder beginning twenty-two inches above the ground leading to a steel platform at the twenty foot level where the transformer apparatus was located. The platform had a railing on three of its sides, but the side next to the ladder had no railing. There was thus an open access from the ladder to the platform. The ladder extended nine or ten inches from the side of the pole and was fastened to it by means of steel brackets. It had rungs running its entire length spaced fifteen inches apart. The bottom seven feet of the ladder was faced with a one-eighth inch metal plate, seven and a half inches wide, which the defendant termed an "anti-climb gate." The rear side of the ladder had no such device on it. This gate was locked in a closed position with a padlock. The rungs of the ladder on the inside were unprotected by the gate; so also were the side brackets, the first of which was eighteen inches above the ground and the second four feet above ground level. Also along the side of the ladder was a hasp lock. After the first seven feet, which was covered by this gate, the rest of the ladder running up to and beyond the platform was completely unprotected.

The platform was so constructed that one could step directly on to it from the ladder. The transformer apparatus was affixed to the platform. From this apparatus there were two parallel vertical wires twenty-one inches long leading from above the platform down to the top of the transformer. Although these two transformer wires carried 6600 volts, they had only "light insulation" of rubber and copper cotton braid one-sixteenth of an inch thick. This insulation was sufficient to give protection against brush contact by clothing in dry weather only. It was not a safeguard against anyone who might touch the wire or come in

[ 396 Pa. Page 194]

    contact with it during rainy weather. The only purpose of the platform was to support the transformer. This catenary pole with the platform and transformer located on it was the only such pole in the immediate vicinity. At the time of the accident there were no warning signs of any kind either on the tower or in the camp area.

This camp site was regularly frequented over a long period of time prior to the happening of this accident. Ingress and egress from the camping area was obtained by means of a path along appellant's right-of-way. Also, there is ample evidence in the record that appellant's trains passed this site regularly and its employees had noticed that the scouts were in the area. There was testimony that the scouts waved to the passing trains and received waves in return. Several of ...


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