Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1955, No. 3324, in case of Judy Ward Moss, administratrix of estate of Charles Ward, deceased, v. Reading Company.
I. Irving Tubis, for appellant.
Richard P. Brown, Jr., with him Ferdinand P. Schoettle, Jr., and Morgan, Lewis & Bockius, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Musmanno joins in this dissenting opinion.
Plaintiff-appellant, administratrix of the estate of her deceased father, brought suit seeking to recover damages from defendant railroad for her father's death which resulted from injuries which he sustained when struck by one of defendant's trains.
The court below, sitting without a jury, entered a non-suit at the close of plaintiff's evidence on liability. Plaintiff's motion to take off the non-suit was refused. The court held, as a matter of law, that the engineman on defendant's train was not guilty of wilful or wanton misconduct. Because decedent was a trespasser on defendant's tracks and was guilty of contributory negligence, a finding of wilful or wanton misconduct was necessary in order to impose liability on defendant. See Evans v. P.T.C., 418 Pa. 567, 212 A.2d 440 (1965); Geelen v. Pennsylvania R.R., 400 Pa. 240, 161 A.2d 595 (1960). This appeal followed.
In assessing the propriety of the entry of a non-suit, we are mindful that such a judgment should be
entered only in a clear case, and that the testimony must be read in the light most favorable to the plaintiff's case, giving her the benefit of all reasonable inferences flowing therefrom. See, e.g., Cushey v. Plunkard, 413 Pa. 116, 196 A.2d 295 (1964); Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963).
The accident occurred in daytime. Despite the fact that decedent was facing the train as it approached him, despite the fact that the headlight of the train was on full beam due to drizzling weather, and despite the fact that the train's engineman sounded several warning whistles, decedent walked diagonally toward the train across two other tracks on the roadbed. Instead of stopping at the second track, as the engineman expected he would, decedent continued across the track on which defendant's train was traveling and was struck just as he had crossed that third track.
Other than decedent, there was but one witness to the accident, the engineman. The engineman, called by plaintiff, testified that he first saw decedent approximately 1,500 feet ahead of him and across the roadbed. The train was traveling at 50 miles per hour. He had just begun to brake the train in his usual manner in preparation for stopping at the next station.*fn1 Decedent started to cross the tracks and the ...