Appeals, Nos. 105 and 109, March T., 1961, from order of Court of Common Pleas of Allegheny County, July T., 1955, No. 811, in case of Anna Kolos, administratrix of estate of Joseph Kolos, deceased, v. Monongahela Connecting Railroad Company. Order refusing judgment non obstante veredicto affirmed; order granting new trial modified.
William W. McVay, with him McArdle, Harrington & McLaughlin, for administratrix.
Judd N. Poffinberger, Jr., with him M. B. Cohill, Jr., and Kirkpatrick, Pomeroy, Lockhart & Johnson, for Monongahela Connecting Railroad Company.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY JUSTICE ALPERN.
These are appeals from orders of the Court of Common Pleas of Allegheny County in an action of trespass. Defendant has appealed from an order denying judgment n.o.v. The jury returned a verdict for the plaintiff in the amount of $30,000 under the Wrongful Death Act, and $40,000 under the Survival Act. The court below granted a new trial unless a remittitur of $50,000 was filed. No remittitur was filed. The plaintiff appealed from the granting of the new trial.
The decedent, a shear operator at the Pittsburgh works of the Jones & Laughlin Steel Corporation, worked in No. 19 Mill Building. Parallel to it, and separated by an areaway 300 feet long and 20 feet wide, is No. 18 Mill Building. A standard gauge railroad track of Monongahela Connecting Railroad Company runs through this areaway. It provides switching service to the Jones & Laughlin Steel Corporation.
Workers in the No. 19 Building have a locker room at the westerly end of the No. 18 Building, and an ungraded crossing is provided there, protected by a standard railroad signal, with flashing warning lights and alarm bells, operated manually by the train crews. These devices were sometimes operating even when no train was approaching the crossing. There was testimony that when the crews would go eastbound they frequently turned the signals on until they completed their business and came back in a westerly direction.
Along the side of No. 19 Building are a series of 10-foot wide ventilating panels, which can be raised like a window sash to help cool the steel coils made at the mill and transported on a conveyor belt running beside the ventilating panels. The ventilating panels also provide greater air circulation for the comfort of the employees. Railings 42 inches high had been erected across the face of the openings to serve as a barrier to the workmen when the ventilating panels were
raised, but no railing was up at the panel through which decedent left to go to the locker room. While the workmen were warned not to go through the panels, the railroad crew knew that the mill workers generally used this means of reaching the lockers.
On February 22, 1955, at 1:00 A.M., decedent, with the announced purpose of picking up his lunch at the locker room, went through the open and railingless ventilating panel. A short time later decedent was found lying on the tracks, the bulk of his body outside the tracks on the No. 19 Building side, unconscious and with his legs amputated. He never regained consciousness and was pronounced dead on arrival at the hospital. His body was discovered by one of the crew members of the defendant's engine. The engine had just traveled in a westerly direction through the areaway, where the track is straight for approximately 100 feet. The engine had stopped at the crossing to shut off the warning bells. It was ...