Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1964, No. 4178, in case of John L. Flaherty v. Pennsylvania Railroad Company.
P. J. McArdle, with him James R. Fitzgerald, for appellant.
Aloysius F. Mahler, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen and Mr. Justice Roberts dissent. Dissenting Opinion by Mr. Justice Musmanno.
This is a trespass action for damages arising from an accident in which plaintiff was injured while unloading
a box car on defendant's railroad tracks. Plaintiff recovered a verdict of $30,000, the lower Court entered judgment n.o.v., and from that judgment plaintiff took this appeal. On February 20, 1963, plaintiff John L. Flaherty had backed his truck against the open door of a railroad box car in order to unload about 150 cartons of paper napkins. These cartons were stacked in layers seven feet high from the floor of the box car. At the time of the accident plaintiff was standing on an improvised step in the car, about three cartons high, and was reaching for a package at the top of the last stack. A number of boxes toppled on him and he fell to the floor and was knocked unconscious when his head hit the steel deck of the car. He testified that he had no recollection of the cause of the accident, because of the suddenness of this mishap and his resulting injury.
One of plaintiff's witnesses testified that a freight car, which had been parked twenty feet away from the box car in which plaintiff was working, was no longer present on the track after the accident. Furthermore, the witness said that he saw an engine on the same track where the box car was, and it was pulling two or three freight cars out of the railroad yard while he was on the way to aid the injured plaintiff. Finally, evidence was offered to show the position of the plaintiff in the railroad car after the accident had occurred. Plaintiff argues that this evidence indicated that one of defendant's engines must have rammed another railroad car into the box car in which plaintiff was working, thereby knocking him to the floor and causing his injuries. Contrary to plaintiff's contention, there was no evidence from which a jury could reasonably infer that there was a negligent collision between a freight car and the box car.
In Wood v. Conneaut Lake Park, Inc., 417 Pa. 58, 209 A.2d 268, the Court aptly said (pages 60, 61-62):
". . . It is, of course, hornbook law that the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact*fn* arising therefrom, but he is not entitled to inferences which amount merely to a guess or conjecture: Bohner v. Eastern Express, Inc., 405 Pa. 463, 466, 469, 175 A.2d 864.
"It is well settled . . . that plaintiff must prove by a fair preponderance of the evidence, (a) that defendant was negligent, and (b) that its negligence was the proximate cause of the accident: Markle v. Robert Hall Clothes, 411 Pa. 282, 191 A.2d 374; Zilka v. Sanctis Const. Co., 409 Pa. 396, 186 A.2d 897; Bohner v. Eastern Express, Inc., 405 Pa., supra. Moreover, a verdict will not be sustained which is based on conjecture or surmise or guess: Steiner v. Pittsburgh Railways Co., 415 Pa. 549, 204 A.2d 254; n.2 Robbins ...