No. 135 April Term 1979, Appeal from the Order in the Court of Common Pleas of Washington County, Civil Action - Law, No. 422 January Term 1974.
Raymond G. Hasley, Pittsburgh, for appellant.
Sanford S. Finder, Washington, for appellee.
Spaeth, Hoffman and Van der Voort, JJ.
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Appellee, as administrator of the estate of his deceased son, Eugene R. Marinelli, commenced wrongful death and survival actions against appellant, Montour Railroad. Following a non-jury trial, the lower court rendered a verdict in favor of appellee in both actions. Montour's exceptions to the verdict were subsequently dismissed. On appeal, Montour argues that judgment notwithstanding the verdict should be entered in its favor for any of several reasons: appellee failed to prove that it was negligent; if it was negligent, appellee failed to prove that its negligence was the proximate cause of Marinelli's death; Marinelli's death resulted from his voluntary assumption of a known risk; and Marinelli was contributorily negligent as a matter of law. Montour also argues that the damages awarded by the lower court were unsupported by the evidence and hence excessive.
In considering whether judgment n. o. v. should be entered in favor of Montour, we must view the evidence, including all reasonable inferences arising from it, in the light most favorable to appellee, the verdict-winner. Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Kresovich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970). So viewed, the evidence discloses the following.
During the summer of 1973, Eugene Marinelli, a sophomore at the University of West Virginia, was employed as a laborer by Cecil Township in Washington County. On July 25, he was working with a Township roadcrew on Burnside Road. Shortly before 2:30 p. m., Marinelli was instructed by his supervisor to board a Township dump truck and go with three other crew members-Angelo Quaresima, Ernest Davis, and Robert Soma-to another work site. Since the cab of the truck was designed to carry no more than three persons, Soma and Marinelli climbed into the back of the truck after
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Quaresima and Davis entered the cab. The truck was 8 feet 6 inches high, and was loaded with two and a half tons of stones-about half a truck load. On top of the stones were pitchforks, picks, and shovels. Because the stones were uncomfortable to sit on, and also because the tools presented a hazard, Soma and Marinelli seated themselves on the cab protector. The cab protector was a steel covering that was connected to the bed of the truck and extended over the top of the cab. Its purpose was to protect the cab from falling objects during dumping operations, but it provided Soma and Marinelli a convenient place to sit.
To get to the work destination, Quaresima drove the truck along Papp Road, which was owned and maintained by the Township. At one point the road crossed under a railroad bridge owned and maintained by Montour. The vertical clearance of this underpass was not marked, but Quaresima knew from prior experience that the dump truck could pass safely through. Quaresima, however, did not know, because he had not been told, that Soma and Marinelli were sitting on the cab protector. Moreover, Soma and Marinelli were seated on the cab protector facing the back of the truck and were oblivious to the existence of the bridge and underpass. Had either of them turned and looked forward, he would have seen the bridge and the underpass from a distance of 500 to 600 feet; but neither looked. When the accident occurred, the dump truck was traveling approximately 20 to 25 miles per hour, and Soma and Marinelli were hunched on the cab protector with their heads between their knees. They were seated in this way because several minutes earlier, while they had been sitting in an upright position, Soma's eyeglasses had been knocked from his head to the bed of the truck by an overhanging tree limb. Soma and Marinelli thought that by hunching over they would prevent a future mishap. Soma did not strike the bridge as the truck passed through the underpass, and escaped injury. Marinelli was killed instantaneously when the back of his head struck the bridge. When asked why Marinelli struck the bridge and he did not, Soma stated that because he was tall and thin, he
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was bending lower than Marinelli, who was shorter and stockier. No part of the truck hit the bridge, and had Marinelli been sitting in the truck bed on the stones, he would have also passed through the underpass safely.
Montour built the bridge in late 1913 and early 1914. When it was built, the vertical clearance between the road and the underside of the bridge was 14 feet. After the accident, Montour excavated about the piers supporting the bridge girders and discovered evidence indicating that the bridge was still 14 feet above the 1914 level of the roadbed. At the time of the accident, however, the vertical clearance was only 10 feet 2 inches. The reduction in the clearance evidently had resulted primarily, if not entirely, from the numerous repairs made to the road by the Township during the 59 years from 1914 to 1973. When the road needed repairing, the Township would repave it without removing the old surface. Road building materials thus accumulated to such an extent that several weeks before the accident the vertical clearance had been reduced to 8 feet. When school buses and maintenance equipment could no longer travel along the road because of the obstructed underpass, the Township increased the clearance to 10 feet 2 inches by reducing the level of the road bed. It was undisputed that since 1914, Montour had never inspected the vertical clearance underneath its bridge, ...