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MOODY J. BENSON v. PENN CENTRAL TRANSPORTATION COMPANY (07/07/75)

decided: July 7, 1975.

MOODY J. BENSON, APPELLANT,
v.
PENN CENTRAL TRANSPORTATION COMPANY, A CORPORATION, ET AL., V. FRANK O. SPEELMAN, INC., A CORPORATION, T/D/B/A DIAMOND CAB COMPANY



COUNSEL

Paul E. Moses, Evans, Ivory & Evans, Pittsburgh, for appellant.

James P. McKenna, Jr., A. F. Mahler, Pittsburgh, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a concurring and dissenting opinion in which Nix, J., joined. Pomeroy, J., took no part in the consideration or decision of this case.

Author: Roberts

[ 463 Pa. Page 39]

Opinion OF THE COURT

On April 9, 1969, appellant Moody Benson, a trainman employed by appellee Penn Central Transportation Co. (the railroad), reported for work at the railroad's Pitcairn, Pennsylvania, yard. The railroad assigned him to

[ 463 Pa. Page 40]

    a train awaiting its crew at the Conway, Pennsylvania, yard and arranged for appellant to be transported to the Conway yard in a taxicab owned by appellee Frank O. Speelman, Inc. (the cab company). En route, the taxicab collided with another automobile operated by Edward Blakely. Appellant sustained back injuries in this accident.

Appellant filed suit against the railroad and Blakely in the court of common pleas to recover damages for the injuries he sustained in the accident. He based his action against the railroad on the Federal Employers Liability Act, 45 U.S.C.A. ยงยง 51-60 (1972). The suit against Blakely was brought under Pennsylvania law. The railroad joined the cab company as an additional defendant pursuant to Pa.R.Civ.P. 2251-52, 12 P.S. Appendix.

The case was tried before a jury which returned a verdict in favor of the plaintiff against all the defendants in the amount of $23,900.00. The jury also found in favor of the railroad against the cab company in the same amount.

The cab company filed motions for judgment notwithstanding the verdict and for a new trial which were denied by the trial court. The railroad filed no post-verdict motions.

The cab company appealed the judgment to the Superior Court. The railroad did not file an appeal within 30 days after the entry of the order of the trial court as required by section 502 of the Appellate Court Jurisdiction Act.*fn1 However, 15 months after appellant entered judgment on the verdict the railroad petitioned the Superior Court for leave to file a late appeal which was granted. The Superior Court vacated the judgment against both the taxicab company and the railroad and remanded for a new trial as to liability.*fn2 Appellant petitioned this

[ 463 Pa. Page 41]

Court for allowance of appeal, which we granted.*fn3 We reverse the Superior Court's order as to the railroad and ...


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