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July 22, 1965

Robert T. PARKER, Administrator of the Estate of Joseph M. Gossner, Deceased

The opinion of the court was delivered by: LORD, JR.

 Plaintiff administrator brought suit under the Pennsylvania Wrongful Death and Survival Acts, 12 P.S. §§ 1601, 1602, 20 P.S. § 320.601, for the death of Joseph Gossner in a collision between Gossner's car and defendant's locomotive. Evidence was presented for seventeen days before this Court and a jury, resulting in a verdict for plaintiff in the total sum of $100,000. At the close of plaintiff's case, defendant moved for a directed verdict; and again at the close of all the evidence that motion was renewed, being joined with a motion for judgment n.o.v. Rule 50, Fed.R.Civ.P. Both motions having been refused, defendant filed the present post trial motions for judgment n.o.v. or a new trial.

 In the course of this long trial, most if not all of the matters presently argued by defendant were raised and ruled upon after argument and the submission of briefs by the parties. The Notes of Testimony, comprising 2316 pages, are replete with rulings, together with reasons and authorities, by the Court on these matters. Since this Court presently adheres to its stated positions in all those respects, it seems that references to those rulings and discussions at trial will suffice, in most instances, to show the basis for the present action of the Court. That action will be to deny the present motions of the defendant.

 Although each party presented eyewitness testimony, and there were over a dozen witnesses in all for each side, there was not much coincidence between the respective versions of the occurrence. The bare facts upon which there was agreement are that on February 7, 1961 at about 1:40 A.M., decedent with five passengers was driving north on Front Street, Philadelphia, under the Elevated street railway superstructure. About 215 feet north of Poplar Street his vehicle collided head-on with defendant's locomotive facing south. Decedent's resulting injuries were such that he may have died within a matter of seconds; but in any circumstance he was found dead on arrival at the hospital.

 Front Street is 34 feet wide. A single track runs down the midline of the street, the result of a conversion from the former double track pursuant to authorization by the Public Utility Commission in 1949. The testimony as to the visibility, the degree to which the sides of the street were banked with snow, and whether the train was moving or not, was in sharp contradiction. For the purposes of the motion for judgment n.o.v., however, it must be assumed that the street was dark, N.T. 26, 130, 374, 418, etc.; and that the illumination cast by the nearest street light, some 38 feet away, was to say the least uncertain. (N.T. supra and 204, 447). There was testimony as to the narrowness of passing space between the locomotive and the banked accumulations of snow (N.T. 47-48, 415, 452 and 651) and as to other hazards asserted by plaintiff.

 Plaintiff presented his last witness on the seventh day (N.T. 798) and completed introduction of exhibits - in the first instance - on the eighth, which was November 25, 1964. Defendant immediately filed a motion for directed verdict, setting out the grounds presently renewed in this motion for judgment n.o.v. At that time, these matters were briefed and argued at some length. N.T. 820-846. After deliberation, the Court denied the motion, but in that particular instance did not state its reasons for the record. N.T. 847.


 The reasons in that instance were in fact, however, the same ones which govern the present motion for judgment n.o.v. They amount in essence to this Court's considered determination that the evidence presented by plaintiff was such that a court would not be warranted in taking from the jury the question of the alleged contributory negligence of the decedent and of absence or presence of negligence on the part of the defendant. Aluminum Co. of America v. Preferred Metal Products, 37 F.R.D. 218, 220 (D.N.J.1965).

 This Court having determined, in its discretion, that those matters were proper for decision by a jury, and not by a court, there seems no need to mention more than a few of the numerous cases cited by the contenders.

 Heavy reliance was placed by defendant upon Cella v. Pennsylvania R.R. Co., 364 Pa. 82, 70 A.2d 638 (1950). It was therein held, two justices dissenting, that a railroad is not negligent in failing to post lights or guards on a standing freight car visible to highway users. A compulsory non-suit was affirmed, and the court specifically declined to consider the question of contributory negligence.

 The Cella case has been cited only once since 1950, and that was a reference to it in the dissenting opinion in Coleman v. Dahl, 371 Pa. 639, 646, 92 A.2d 678 (1952). Perhaps more important is the fact that the ruling turned on the circumstance that the freight car was visible to highway users, whereas visibility was a crucial issue of fact in the instant case.

 As to the negligence of the defendant, the heart of the question was which of the witnesses the jury could believe. There is ample testimony in the record to support a finding that the train was without headlight, bell or lanterns - and gave no warning of its approach. N.T. 30, 32, 127, 137, ...

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