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ZAWOYSKI v. PITTSBURGH RAILWAYS COMPANY (11/10/64)

November 10, 1964

ZAWOYSKI
v.
PITTSBURGH RAILWAYS COMPANY, APPELLANT.



Appeal, No. 134, March T., 1964, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1960, No. 3141, in cases of Frank T. Zawoyski and Jean Zawoyski, his wife, v. Pittsburgh Railways Company and Borough of Carnegie; and Borough of Carnegie v. Pittsburgh Railways Company. Judgment affirmed.

COUNSEL

Con F. McGregor, with him Bechman, Dunn & McGregor, for appellant.

Milton I. Watzman, with him Watzman and Groudine, for appellees.

Before Bell, C.j., Musmanno, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Musmanno

[ 415 Pa. Page 564]

OPINION BY MR. JUSTICE MUSMANNO

On the morning of August 10, 1958, the alarm sounded in the Carnegie Fire House, which sat back some 38 feet from Main Street which it faced. With alertness and promptitude the firemen leaped to their duties. Krovchyshyn, the driver, scaled to the driver's seat of the fire truck, Steve Moss jumped onto the running board at the rear of the truck, and Fireman Frank T. Zawoyski, the plaintiff in this case, ran ahead to the center of Main Street to make certain the street was clear because it would be of little use to the premises on fire if the fire truck became crippled before it could get rolling on its mission to quench the consuming flames.

Zawoyski saw a streetcar approaching from the west, then about 150 feet away, traveling at some 35 miles per hour. He waved to the motorman to stop and the car immediately began to slacken its speed. In view of the setback of the engine house from the street, the driver of the fire truck had to depend on a signal from Zawoyski as to when to move into Main Street because a high building to his left shut off his view. Zawoyski did then signal Krovchyshyn to come on. With ear-splitting siren blowing, accompanied by

[ 415 Pa. Page 565]

    all the clatter of a huge fire truck in movement, Krovchyshyn did come on. The streetcar, with less audible commotion, also came on. The vehicles met.

Zawoyski, charging the railways company with negligence in advancing in the face of a demonstrated obstacle in the path of its streetcar, sued the railways for injuries he sustained when, jumping onto the running board of the fire truck, he was jolted by the collision. The railways company made the Borough of Carnegie an additional defendant. The borough sued the Pittsburgh Railways Company for the damages done to its truck.

At the trial the jury returned a verdict in favor of Zawoyski in the sum of $15,000 and returned a verdict in favor of the railways company in the suit filed by the borough.

The appellant company now asks for judgment n.o.v., or, in the alternative, a new trial. It contends that the plaintiff was guilty of contributory negligence as a matter of law. The record does not uphold this contention. It maintains also that there is an inconsistency in the verdicts, arguing that since the jury found for the railways company in the borough's suit against it, this meant that Zawoyski was negligent in the manner in which he signaled the fire truck to come forward into Main Street. This is not necessarily so. The jury could have found that the borough was not entitled to a verdict for the damage done to its fire truck on the basis that the driver of the truck, Krovchyshyn, failed properly to observe the signals given him by Zawoyski. This proposition is borne out by the Court's questioning of the jury: "The Court: You have found the truck ...


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