Appeal, No. 142, Jan. T., 1959, from order of Court of Common Pleas of Cameron County, Oct. T., 1954, No. 38, in case of Leslie Geelen, administrator of estate of James David Geelen, deceased, v. Pennsylvania Railroad Company. Order affirmed.
Joseph J. Malizia, with him John E. Rydesky, and Rydesky & Malizia, for appellant.
John D. Gresimer, with him Alfonse J. Straub, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
James David Geelen was killed on a public railroad crossing when struck by one of the defendant's trains.
The plaintiff, administrator of the estate, brought a survival action on behalf of decedent's estate and a wrongful death action on behalf of those entitled to recover damages. The jury verdict favored the plaintiff; damages were awarded in favor of the widow, the children, and the estate. The lower court refused to enter judgment non obstante veredicto but did grant a new trial. This appeal questions the legal correctness of the court's new trial order.
The defendant railroad operates trains over a double set of tracks between Emporium, Pennsylvania, and Buffalo, New York. In Shippen Township, Cameron County, Pennsylvania, these tracks cross a public road which leads into the crossing on a steep incline and at a sharp angle. The roadway travels from the south in the same general direction as the tracks for a distance of several hundred feet. From the crossing looking up the tracks in the direction from which the train approached in this case, there is a clear, unobstructed view of over eighteen hundred feet. The crossing concerned was in a bad state of repair for two or three months before the day of the accident, a large sized hole having existed in the traveled portion of the roadway due to faulty construction and improper maintenance. A heavy accumulation of snow, allowed to remain on the tracks for more than twenty-four hours before the accident occurred, completely obscured the defective condition existing in the roadway. On the occasion involved, while the decedent was driving his automobile over the crossing, the left front wheel fell into this hole and the motor stalled. He was out of the car attempting to push it from the crossing, when he was struck by a two-unit Diesel engine, pulling one hundred and thirteen cars, and was crushed to death between the train and the automobile.
The court properly rejected defendant's motion for judgment non obstante veredicto. In addition to the
above facts, there was additional substantial proof which, if believed by the jury, warranted a conclusion of negligence in that decedent's presence on the crossing continued for sufficient time and under such circumstances as to provide the engineer of the train, if sufficiently alert, with knowledge of decedent's perilous predicament and with a reasonable opportunity to bring the train to a stop before it reached the crossing: Kurtz v. Phila. Transportation Company, 394 Pa. 324, 147 A.2d 347 (1959); Leghart v. Montour R.R. Co., 395 Pa. 469, 150 A.2d 836 (1959). The evidence, concerning the faulty condition of the traveled portion of this public crossing, continued in for a long period of time before the accident, was also sufficient, in itself, to warrant a finding of causative negligence on the part of the defendant. A railroad company is under a duty to maintain a public crossing in a state of good repair: P., F.W. & C. Railway Co. v. Dunn, 56 Pa. 280 (1867); Pro v. Pennsylvania R.R. Co., 390 Pa. 437, 135 A.2d 920 (1957). In passing it is interesting to note ...