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DOLLISON v. BALTIMORE AND OHIO RAILROAD COMPANY (12/20/71)

decided: December 20, 1971.

DOLLISON
v.
BALTIMORE AND OHIO RAILROAD COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1962, No. 2389, in case of Walter Dollison v. The Baltimore and Ohio Railroad Company.

COUNSEL

John A. Shrader, for appellant.

James E. Beasley, with him Jeffrey M. Stopford, and Beasley, Albert, Hewson & Casey, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen took no part in the decision of this case.

Author: Pomeroy

[ 446 Pa. Page 97]

This appeal challenges the correctness of the trial court's refusal of appellant's motion for a new trial

[ 446 Pa. Page 98]

    following a jury verdict in appellee's favor as a result of injuries sustained by appellee in a grade crossing accident.*fn1 Most of the reasons assigned for a new trial concern alleged errors in the court's charge; one involves the admission of certain evidence; the others have to do with the weight of the evidence showing disability and the alleged excessiveness of the verdict.

We have reviewed the voluminous record*fn2 and scrutinized carefully the charge and the rulings of the trial judge. We have concluded that the motion for a new trial was properly refused, and affirm the judgment below.

In order to have an understanding of the issues raised, the facts must be recounted in some detail. Appellee was an employee of the City of Philadelphia and a passenger on a city-owned sanitation truck driven by another employee. On a dark night in February, the truck collided with a train of the appellant, The Baltimore and Ohio Railroad Co. The accident took place in South Philadelphia at a place where an unpaved public street crosses the yard running tracks of the B. & O. Railroad at grade. The truck was enroute from a city dump; the train consisted of 32 freight cars being moved from the pier district to the appellant's east side yards. In the trash truck were appellee, the driver, and another passenger. In the locomotive cab were the engineer, fireman, a conductor, and two flagmen. The truck was proceeding westwardly at a "creeping" speed of 1 to 2 miles per hour; the train was headed south at a speed estimated between 7 and 15 miles per hour. The engineer, seated on the right or westerly side of the

[ 446 Pa. Page 99]

    locomotive cab, had no view of the truck approaching from the east; the fireman, seated on the left, stated that he did see the approaching lights of the truck when that vehicle was about 80 feet from the crossing, and the locomotive five car lengths from that intersection. When the lights continued to move closer, the fireman ordered the engineer to stop, and the emergency brakes were applied immediately, but too late to avoid a collision. The locomotive hit the right side of the truck.

The testimony was sharply conflicting on the highly important question of visibility and warnings. Appellee's witnesses, the other members of the sanitation crew, stated that the train was operating without lights and without any warning bell or horn; that it was snowing and misty at the time, with some smoke from the dump also obscuring vision; that they were unable to ...


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