Appeal, No. 131, March T., 1958, from judgment of Court of Common Pleas of Armstrong County, June T., 1956, No. 408, in case of Lenore Aneva Johnson, administratrix of estate of Albert Leroy Johnson, deceased v. Pennsylvania Railroad Company. Judgment reversed; reargument refused June 6, 1960.
David C. Suckling, with him R. A. House, Jr., for appellant.
Robert W. Smith, Jr., with him Smith, Best and Horn, for appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
Albert L. Johnson was struck and killed by a locomotive at a Pennsylvania Railroad crossing in the borough of Manorville, Armstrong County, while driving an automobile, accompanied by his wife, Mrs. Lenore A. Johnson, who was injured in the same accident. She brought death and survival actions against the railroad company as the result of her husband's death and filed an additional suit in her own name for her injuries. The jury returned verdicts in the sums of $1,850 and $15,000 in the death and survival actions, and
$2,500 in favor of the plaintiff in her personal injury suit. The trial court entered judgment n.o.v. in the death and survival actions, declaring that the decedent, Albert L. Johnson, had been guilty of contributory negligence as a matter of law. The verdict in the personal injury suit was affirmed.
Mrs. Johnson, as administratrix of the estate of her husband, appealed from the judgment n.o.v. In considering the justifiability of a judgment n.o.v., the transcript of the record could well be read as if all testimony favoring the verdict-winner stood out in italics. Applying such an appraisement to the evidence, the following narrative warrantedly emerges:
Locust Street in Manorville, an east-west thoroughfare, crosses, at grade, two railroad tracks of the Pennsylvania Railroad, the western track accommodating southbound tracks and the eastern track northbound trains. On the date above mentioned at about 2 p.m., Albert Johnson, his wife sitting beside him as a passenger, was driving his car in an eastwardly direction on this street. When the car arrived at a point about 20 feet from the nearest rail of the southbound track, Johnson brought it to a stop, in obedience to the usual railroad sign warning travelers to stop, look and listen. Looking to the north and to the south the Johnsons saw no trains, and, in that pause, they listened for warning signs of approaching trains. They heard nothing. After this surveillance which assured them it was safe to proceed further, the driver Johnson moved forward again, but at a snail's pace, so slowly in fact that, as Mrs. Johnson later testified, the measure of speed was not recordable by the car's speedometer.
As the car crawled toward the tracks, both Mr. and Mrs. Johnson continued to study the railroad site, particularly looking toward the north because it would be from this direction that any train, as they crossed
the first track, would come. Their view to the north, that is to their left, was a restricted one because of the presence of buildings, three telephone or utility poles and a hedge. At a point 12 feet from the nearest rail, their furthest vision extended no more than from 200 to 250 feet. A short distance beyond the physical obstructions ...