Appeal, No. 180, March T., 1964, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1955, No. 211, in case of Mildred Schiller Steiner, administratrix d.b.n. of estate of Allan F. Schiller, deceased v. Pittsburgh Railways Company. Judgment affirmed.
Hymen Schlesinger, for appellant.
John Ward Hindman, with him Pritchard, Lawler & Geltz, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Plaintiff-administratrix appeals from a judgment of non-suit. The judgment of non-suit was entered in a trespass action brought by plaintiff for damages for the death of her intestate.
Defendant operates railway cars by cable on two tracks from the bottom of a hill to the top of a hill in Pittsburgh on a steeply inclined track. The track on this particular hill was 2644 feet in length, with an elevation of over 400 feet.
Plaintiff pleaded two factual theories to establish her right to recovery. The first theory pleaded was that on or about October 8, 1953, decedent boarded defendant's car and while a passenger fell or was thrown by the rough motion of the car to his death on the railroad tracks. Plaintiff also alternatively pleaded that decedent, aged 13, was struck by defendant's car on or about October 8, 1953, while traversing a footpath that crossed defendant's railway tracks on the hillside.
Plaintiff utterly failed to prove how or in what manner decedent's death occurred. However, plaintiff did prove that the decedent's dismembered body was found widely scattered along the east rail track about halfway up the incline, and it is clear that defendant's easternmost car had passed over decedent's body at least once. Plaintiff further proved that decedent went to an evening football game, that after the game he went to the defendant's station at the foot of the incline, and that he was last seen alive while standing in a line of approximately 75 to 100 people who intended or desired to board the next car when it arrived.
No one knows whether decedent actually boarded the car or how and in what manner his death occurred. Plaintiff further proved (a) that the tracks had been unlighted for some time prior and subsequent to the evening in question, and (b) that the cars had previously had only one light on each car, and (c) that these incline cars had been operated previously in a jerky ...