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CONNELLY CONTAINERS v. PENNSYLVANIA RAILROAD (06/16/72)

decided: June 16, 1972.

CONNELLY CONTAINERS, INC.
v.
PENNSYLVANIA RAILROAD, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, No. 1521, in case of Connelly Containers, Inc. v. The Pennsylvania Railroad and/or Penn Central Transportation Company.

COUNSEL

Robert W. Sayre, with him Guy T. Moore, John F. Meigs, Thomas R. White, Jr., Saul, Ewing, Remick & Saul, and White & Williams, for appellant.

Francis E. Marshall, with him Stephen A. Cozen and Thomas A. Riley, Jr., for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 222 Pa. Super. Page 9]

Appellee, Connelly Containers, Inc., brought an action in trespass in the Court of Common Pleas of Philadelphia, against the Pennsylvania Railroad Company (now Penn Central Transportation Company) claiming damages for the destruction of its Bala-Cynwyd corrugated box factory by a fire which occurred on May 24, 1965, allegedly as a result of negligence on the part of appellant. By agreement of the parties the issue of liability was tried before a jury in May, 1970, the Honorable Joseph L. McGlynn, Jr., presiding. The jury returned a verdict for appellee. Judge McGlynn entered judgment for appellee following the denial of appellant's motions for judgment n.o.v. and for a new trial. On the date that the judgment was entered the parties stipulated to damages of $6,000,000. Appellant appeals from this entry of judgment.

Appellant contends that (1) the lower court should have directed a verdict for appellant on the ground that there was no evidence from which a jury could reasonably conclude that appellant provided the source of ignition for the fire at appellee's plant, (2) the lower court erred in submitting each one of three possible theories of liability for consideration by the jury, (3) the lower court erred in refusing to charge the jury that appellee was bound by certain evidence which it introduced, and (4) the lower court erred in admitting

[ 222 Pa. Super. Page 10]

    in evidence the opinion testimony taken on deposition of appellee's expert witness where appellant allegedly did not receive a full opportunity to examine this witness as to his opinions. For the reasons set forth below we believe that the judgment of the lower court should be affirmed.

The significant facts in this case are as follows: The fire broke out shortly after 4:00 a.m. on May 24, 1965, and rapidly spread throughout the manufacturing area of appellee's plant, eventually destroying that portion of the plant. Appellee produced expert and other testimony which indicated that the fire had originated in a boxcar loaded with cornstarch. This car had been delivered into the plant by appellant two nights before the fire.

Appellee sought to develop the theory that the cargo of the boxcar had been ignited by appellant's employees during the making of repairs to the loaded car in appellant's yard at Enola, Pennsylvania, near Harrisburg, and that because of the peculiar nature of cornstarch, the fire had burned undetected for nearly six days and then erupted, raising the temperature of the car and igniting rolls of paper next to the car by radiant heat.

The boxcar in question had been loaded in Iowa with 840 one-hundred pound bags of cornstarch piled chest-high on cardboard pallets called "slip sheets". The car was transferred to appellant in Chicago, and appellant placed the loaded car in its repair yard at Enola, prior to delivery to appellee, to do certain repair work on an extension of the metal running board at the brake end of the car. Appellant admitted that the repair work involved heating and welding, but denied that its employees had ever ...


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