Appeals, Nos. 14 and 15, March T., 1959, from judgment of Court of Common Pleas of Allegheny County, July T., 1949, No. 1821, in case of Georgiana C. Sudetic, administratrix of the estate of Gregory M. Karavanic, deceased v. Pennsylvania Railroad Company. Judgment affirmed. Trespass for wrongful death. Before MARSHALL, J. Verdict for plaintiff in amount of $30,000; defendant's motions for new trial and for judgment n.o.v. refused and judgment entered on verdict. Defendant appealed.
Bruce R. Martin, with him Pringle, Bredin & Martin, for appellant.
J. Thomas Hoffman, with him Ernest G. Nassar, and Charles F. McKenna, for appellee.
Before Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE COHEN
Gregory M. Karavanic, the appellee's decedent, was killed when the truck which he was driving collided with appellant's train at a crossing. Two mail clerks, who were on the train, were also injured.
Karavanic was traveling in his truck on U.S. Highway Route 36 near Dennison, Ohio, in a very dense fog at a speed of ten to twenty miles an hour approaching Wolf's crossing. The highway at this point was north and south and the railroad tracks east and west. The driver of a bus who travelled behind the truck for two
or three miles testified that he saw the truck's rear lights signaling a stop before crossing with two lights facing north and two lights facing south. However, he was unable to state whether or not the truck was beyond the flasher lights on the north side of the track when it stopped. The bus driver's assistant testified substantially the same as the driver. He testified that the truck stopped approximately ten feet in front of the tracks. Another mail clerk, along with the bus driver's assistant, testified that no whistle warning of the train's approach was ever blown. After stopping in front of the track Karavanic started across and was practically over the second of the two sets of tracks when he was struck at the rear end of his trailer by a passenger train. He was killed and his tractor-trailer was damaged. The locomotive was derailed, the engineer and fireman were killed.
Mack Miller, one of the injured mail clerks, brought suit against the railroad. Karavanic's administratrix and his employer were brought upon the record by the railroad as additional defendants. After starting her suit against the railroad, the appellee, administratrix of Karavanic's estate, petitioned the court to consolidate her case against the railroad with the Miller case which had been remanded for a new trial, Miller v. Pennsylvania Railroad Company, 368 Pa. 507, 84 A.2d 200 (1951), and have them tried at the same time in order that a verdict should not be entered against the plaintiff without an opportunity to present her case. The petition to consolidate the two cases was granted as also was the third case brought by the other mail clerk, Lloyd Killen. The trial judge, at the request of the railroad's counsel and fearful that the diverse issues between the many parties might tend to confuse the jury, called counsel for all concerned and asked for a vote to see how many wanted the appellee's case stricken from the consolidation. All counsel except appellee's
desired the case stricken. Because of appellee's contention that if a verdict against her without having an opportunity to present her side of the case would be construed as res judicata, the court directed the parties to enter into a stipulation. ...