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TOMASEK v. MONONGAHELA RAILWAY COMPANY (11/14/67)

decided: November 14, 1967.

TOMASEK, APPELLANT,
v.
MONONGAHELA RAILWAY COMPANY



Appeals from judgments and orders of Court of Common Pleas of Fayette County, Sept. T., 1963, No. 1132, Dec. T., 1963, Nos. 195 and 596, in cases of Marlene Tomasek v. Monongahela Railway Company and John Tomasek, administrator of estate of Harry E. Tomasek, deceased; William L. Tomasek v. Same; and John Tomasek, administrator of estate of Harry E. Tomasek, deceased v. Monongahela Railway Company.

COUNSEL

Herman M. Buck, with him Harry Humbert, and Ray, Buck, John & Hook, for appellant.

Fred C. Adams, with him Coldren & Adams, for appellants.

Herbert Margolis, for appellant.

Thomas A. Waggoner, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Eagen and Mr. Justice Roberts would affirm the order of the court below granting new trials to Marlene and William L. Tomasek against John Tomasek, Personal Representative of the Harry E. Tomasek Estate.

Author: Jones

[ 427 Pa. Page 373]

On January 28, 1963, Harry E. Tomasek (decedent) was operating his motor vehicle in an easterly direction on the Republic-New Salem highway in Fayette County and in the front seat of that motor vehicle were Tomasek's wife, Marlene Tomasek, and his brother, William Tomasek. At approximately 8:40 p.m., while the Tomasek motor vehicle was entering upon a grade railway crossing of the Monongahela Railway Company (Railway) in Newboro, Fayette County, the right front end of the Tomasek motor vehicle collided with the left front end of a locomotive of the Railway and, as a result of that collision, decedent was killed and his wife and brother seriously injured.

Three trespass actions were instituted in the Court of Common Pleas of Fayette County: (1) Marlene Tomasek sued the Railway and John Tomasek, decedent's personal representative; (2) William Tomasek sued the Railway and decedent's personal representative; (3) John Tomasek, decedent's personal representative, sued the Railway. All three actions were consolidated for trial and, after trial, the jury returned verdicts in favor of the Railway in the three actions against it and for the decedent's personal representative in the two actions wherein he was an additional defendant. The court below denied new trials as against the Railway but granted new trials against decedent's personal representative in the two actions wherein he was an additional defendant. In granting the new trials, the trial court was of the opinion it had erred in certain instructions to the jury.

From the judgments entered on the verdicts in favor of the Railway Marlene Tomasek, William Tomasek

[ 427 Pa. Page 374]

    and decedent's personal representative have appealed; from the orders granting Marlene Tomasek and William Tomasek new trials, ...


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