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decided: January 4, 1967.


Appeal from judgment of Superior Court, April T., 1965, No. 319, reversing judgment of Court of Common Pleas of Allegheny County, Oct. T., 1962, No. 32, in case of Rosemarie Franc v. Pennsylvania Railroad.


H. N. Rosenberg, with him Rosenberg and Kirshner, for appellant.

Michael R. Dougherty, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Cohen concurs in the result. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this concurring opinion. Dissenting Opinion by Mr. Justice Jones. Mr. Chief Justice Bell joins in this dissenting opinion.

Author: Musmanno

[ 424 Pa. Page 101]

On March 8, 1962, Rosemarie Franc was crossing, on foot, a railroad bridge over Chartiers Creek in Carnegie, when she fell through a hole in the floor of the bridge, due to a missing plank, and sustained serious injuries. She brought suit in trespass against the Pennsylvania Railroad, which owned and maintained the bridge, and recovered a verdict of $7,000 which, upon appeal to the Superior Court by the defendant railroad, was reversed and judgment was entered in favor of the defendant. We granted allocatur.

The Superior Court stated that it reversed because it felt compelled to do so on account of the decision in Falchetti v. Pennsylvania Railroad Co., 307 Pa. 203. However, the facts in the Falchetti case are so dissimilar from the ones in the instant case that they can be said to run on a wholly different set of tracks. In Falchetti the minor plaintiff was struck by the cylinder head of a railroad engine while he was walking longitudinally on a path immediately adjacent to the railroad. In describing the locus in quo, the Supreme Court said the path "parallels those tracks around the outside of a rather sharp curve so that it is difficult, if not impossible, for the engineer of an approaching train on the track nearest to the path to know, until it is too late to avoid an accident, whether or not he can operate his engine without striking a pedestrian, if one should be on the path at the place of this regrettable accident." The Court explained further that the cylinder of the engine, on account of the curve, projected over the rail further than it would have been the case on a straight track and this "tended to hide from the view of the engineer those who were on the path."

Falchetti, therefore, can in no way be authority for the fact situation in the case at bar. This case has nothing to do with a railroad engine, a curve, or a collision. About the only point of similarity between Falchetti and the instant case is that the defendant happens

[ 424 Pa. Page 102]

    to be the same railroad company. In the instant case the inhabitants in the immediate area of the bridge in controversy had been tramping across it for 30 years. The bridge accommodated one railroad track, with walkways on either side. Three weeks prior to the accident, the middle plank of one of the walkways disappeared. A couple of days before the accident, snow fell in such quantity and to such a depth that drift, overhang and nature's laws, aided by pedestrian movement, projected snow over the hole, obscuring the void beneath. The dirt and soot of railroad engines conspired with these other circumstances to give the entire walkway a uniform dirty appearance, further camouflaging the abyss into which Rosemarie Franc, 21 years of age, was to unwittingly plunge.

Since trains crossed the bridge several times a day, the railroad was charged with its daily maintenance and reasonable periodical inspection. Since railroad employees walked across the bridge, it was for the jury to determine whether the railroad company, if it did not have actual notice, had constructive notice of the hiatus in the walking surface of the span. The jury found, by its verdict, that the railroad company had notice of the defect in the floor of the bridge and found also that it was negligent in not repairing that defect.

The duty of the railroad company in situations such as the one here outlined is spelled out in the Restatement 2d, Torts, ยง 335: "A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if (a) the condition (i) is one which the possessor has created or maintains and (ii) is, to his knowledge, likely to cause death or serious bodily ...

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