Appeal, No. 387, Jan. T., 1961, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1957, No. 1211, in case of Ray Griffith Hoover v. The Pennsylvania Railroad Company and Phoenix Iron and Steel Company. Judgment against appellant reversed; reargument refused January 30, 1962.
Gordon W. Gerber, with him Wesley E. Forte, and Barnes, Dechert, Price, Myers & Rhoads, for appellant.
Michael A. Foley, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
The Phoenix Iron and Steel Company maintains a plant about one mile east of Harrisburg where it operates a small railroad whose tracks parallel the right of way of the Pennsylvania Railroad. On January 26, 1957, employees of the Phoenix company, under the direction of the freight conductor Frank J. Pilsitz, were shifting freight cars on the Phoenix tracks. A string of cars was being propelled forward by a diesel locomotive against a lone car for the purpose of attaching that car to the string. The joining coupler which was to effect the connection, failed to work and the lone car took off by itself as a result of the tremendous jolt it received in the unsuccessful fastening process. Since the brakes on this car had not been applied, it achieved a forceful momentum and, after traveling some 80 feet, rammed head-on into a lone gondola standing on the track, striking it with such violence that the gondola tilted from the perpendicular, its superstructure listing to such a degree that the upper part of the car filled almost completely the space between the Phoenix track and the Pennsylvania Railroad track, this space measuring 7 feet 3 1/2 inches.
While all this was taking place, the famed Broadway Limited of the Pennsylvania Railroad was moving eastwardly from Harrisburg on its appointed run to New York, traversing the track next to the track harboring the leaning gondola. A gondola is a freight car without roof and with steel sides, having no resemblance whatsoever in shape, size or weight to its gossamer-weight namesake riding the canals of Venice.
The Phoenix freight conductor, Pilsitz, saw at once that the overhang of the gondola jeopardized the passage of the Broadway Limited. The thunder and the flash of this train already could be felt and Pilsitz whipped from his pocket a white card which he waved,
as he stood in the track over which the Broadway Limited, with its eighteen passenger cars, was advancing. The train had now reached a point known as Dock's Bridge, 814 feet east of the steel-ballasted marooned freight car.
In the locomotive of the Broadway Limited, the engineer saw the obstruction and threw on his emergency brakes, bringing the train to a stop with its front end some 140 to 210 feet beyond the reclining gondola and missing the sides of the derelict car by a scant inch and a half.
Although a crash was providentially averted, the incident was not without casualty. The passenger brakeman, Ray Griffith Hoover, who was riding in the last car of the Pennsylvania train, suddenly found himself, as the air brakes seized hold of the revolved wheels, picked up as if by a giant hand and hurled ...