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FALLON v. PENN CENTRAL TRANSPORTATION COMPANY (07/21/71)

decided: July 21, 1971.

FALLON
v.
PENN CENTRAL TRANSPORTATION COMPANY, APPELLANT



Appeal from judgments of Court of Common Pleas of Delaware County, No. 13173 of 1966, in case of James M. Fallon, Jr., a minor by his parents and natural guardians, James M. Fallon and Josephine Fallon and James M. Fallon and Josephine Fallon, in their own right v. Penn Central Transportation Company.

COUNSEL

Eugene P. Balderston, Jr., for appellant.

Harry J. Bradley, for appellees.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri. Concurring Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Barbieri

[ 444 Pa. Page 150]

This case involves an accident between a Penn Central Transportation Company train and an automobile operated by the minor plaintiff James M. Fallon, Jr. Fallon was awarded $50,000.00 by a jury in the Court of Common Pleas of Delaware County. Fallon's parents received an award of $7,500.00 which was reduced to $4,308.67 in accordance with a remittitur. Penn Central's motions for judgment n.o.v. and for a new trial were

[ 444 Pa. Page 151]

    denied. Penn Central now appeals from these judgments

Most of the facts are undisputed. The accident occurred on the railroad crossing at the Gladstone Station on the Penn Central Railroad's Philadelphia-Media line. The crossing, maintained by the railroad to enable its patrons to use the parking lot south of the two tracks, runs generally north-south while the tracks run generally east-west. On November 12, 1964, at approximately 8:00 a.m., Fallon, then seventeen years old, approached the crossing from the north. Fallon was then a student at a college in Philadelphia, and had driven the same route every weekday morning for at least two months. He planned to park his car in the lot and catch the next eastbound train to Philadelphia.

As Fallon approached the crossing, an eastbound train was coming to a stop on the farther track, blocking the crossing. He stopped his car, his front bumper some twenty feet from the nearer, westbound track, to wait for the train to pass. At this point he could see only a few feet east down the westbound track, his view being obstructed by the station's shelter. This shelter is set back approximately eleven feet from the nearest rail and is approximately fifty feet to the east of the crossing. The window on the left, or driver's side, of Fallon's car, through which he would look for a westbound train before crossing the closer track, was open approximately a quarter of an inch at the top. His radio was on, although "[i]t wasn't on extremely loud." After the eastbound train had cleared the crossing, Fallon proceeded toward the westbound track. He moved forward slowly but did not stop until the front of the car was within the swath of the train. He did not hear any warning signal. He first saw the train, traveling at approximately forty-five miles an hour, when it was less than sixty feet away and then "blacked out." The front steps on the right side of the

[ 444 Pa. Page 152]

    lead car of the train (which was not scheduled to stop at Gladstone) collided with the left front of the automobile. Fallon was thrown from his car and sustained bodily injuries.

Penn Central makes five arguments on appeal: (1) the evidence of negligence was insufficient to warrant a verdict against appellant; (2) the verdict was against the weight of the evidence; (3) the appellee was guilty of contributory negligence as a matter of law because he did not stop, look and listen from a place of safety where he would have a reasonable view of oncoming trains; (4) the trial court erred in not instructing the jury, as requested, that appellant had a superior right of way at the crossing; and (5) the verdict was excessive. We find no merit in any of appellant's contentions. We affirm.

We treat first the issue of the sufficiency of the evidence of Penn Central's negligence. It is well established that in considering a motion for a judgment non obstante veredicto, the evidence must be viewed in the light most favorable to the verdict winner. See, Herron v. Silbaugh, 436 Pa. 339, 260 A.2d 755 (1970); Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966). A reviewing court is not to draw its own inferences from the testimony but is rather to give the verdict winner the benefit of every favorable inference of fact which the jury might legitimately draw from the evidence. See, Flaherty v. Pennsylvania Railroad Co., 426 Pa. 83, 231 A.2d 179 (1967); Joseph v. United Workers Association, 343 Pa. 636, 23 A.2d 470 (1942).

Viewed in this light, we find that the evidence was sufficient to support the verdict. Fallon and one of his witnesses testified that it was difficult if not impossible to gain an adequate view of the westbound track without putting one's car in or dangerously close to the swath of an oncoming ...


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