173 Pa. Super. 296 | Pa. Super. Ct. | 1953
Opinion by
Defendant’s railroad tracks in the vicinity of Parkland, Pennsylvania, run parallel with U. S. Route 1, on an embankment about 50 feet west of the highway. After dark in the evening of October 21, 1948, plaintiff’s tractor-trailer was being driven southwardly on the highway as a freight train on the nearby track was proceeding northwardly. Suddenly and without warning plaintiff’s driver observed a dark object, about 30 feet away, rolling diagonally across the pavement directly in the path of the truck. He applied his brakes and swerved the truck but was unable to avoid the oncoming object. On inspection after the collision the driver found that he had run over a coupler which had broken off from a railroad car. The freight train stopped and a separation of about one car length resulted from the loss of the coupler from one of the cars. The steel coupler which was removed from under the truck by the train crew, weighed upwards of 300 pounds and was about 3 feet long. In this action to recover the cost of repairing-extensive damage to the truck, the jury found for the plaintiff. Defendant has appealed from the refusal of the court to enter judgment n.o.v. in its favor.
On the trial of the case plaintiff in its proofs did not attempt to charge the defendant with specific acts of negligence but relied upon the doctrine of ‘exclusive
The averment of plaintiff’s complaint that the “freight train was under the exclusive control of the defendant” was not denied in defendant’s answer and when read into the record became an admission to that effect. Lacaria, Admr. v. Hetzel, 373 Pa. 309, 96 A. 2d 132. Moreover the particular car on the train from which the coupler was broken was within defendant’s exclusive control. The doctrine of exclusive control was properly invoked in this case and the controlling consideration here is whether, under all of the circumstances, including defendant’s unrebutted testimony, the question of defendant’s negligence was one of fact for the jury. The'freight train parted because of the breaking of a coupler on a hopper car owned by the Pennsylvania Railroad, which, shortly before, had been turned over to the defendant on car interchange. There is testimony that in accordance with routine practice, the car, after defendant received it, was given a “Class A” inspection which consists in no more than “a visual in
Appellant strongly relies upon Bradley v. L. S. & M. S. Rwy. Co., 238 Pa. 315, 86 A. 200, an action for personal injuries in which a judgment based upon binding instructions for the defendant was affirmed. In that case the plaintiff went to the railway station and, while waiting for an evening train which he intended to take, sat on a truck on the station platform. He was injured when struck by an iron brake bar which broke away, and was hurled violently, from a car on a passing train. The brake bar had been held in place by a cotter pin which “the jolting or vibration”- of the car had dislodged. The car had been inspected in the afternoon of the day of the injury when the brake bar involved was found to be in place and in order, although a brake bar
The Bradley case has not been followed in a similar factual situation and cannot be regarded as authoritative in the disposition of the present appeal. In the course of the opinion in that case the Supreme Court said: “That the bar should have fallen down, broken off, and been hurled from the train just at the spot where the plaintiff was sitting was of course a result which the defendant could not have foreseen”. The brake bar was of considerable size and weight and from 2 to 3 feet in length. Under the present-day rule (Cf. Dahlstrom v. Shrum, 368 Pa. 423, 84 A. 2d 289) from a realistic viewpoint it must have been reasonably foreseeable in the instant case that a coupler when broken would be thrown clear of the train and, rolling down the embankment on to U. S. Route 1, might damage a motor vehicle, the property of some one of the class to which plaintiff belongs, lawfully proceeding on that much-traveled highway. Moreover the Bradley case, in which the doctrine of exclusive control was not applied, is not consistent with the more recent decisions of our Supreme Court to the effect that in similar factual situations the question of the defendant’s negligence is for the jury. Here the proof as to the cause of the accident was peculiarly and exclusively within the possession of the defendant (Cf. Miller v. Hickey, 368 Pa. 317, 81 A. 2d 910) and the doctrine of exclusive control was applicable. Moreover, from the fact that defendant’s testimony of the exercise of due care is uncontradicted, it does not follow that the defendant is entitled to judgment n.o.v. It still remained “for the jury to decide whether such explana
There was not entire unanimity in the defendant’s testimony as to the extent of the inspection which the railroad was hound to make and defendant’s general inspector testified that “there is a great deal of difference between the care used by one inspector and that used by another”. Since the evidence advanced by defendant, that it exercised due care, was all oral, the credibility of the witnesses, the weight of their testimony, and the adequacy of their explanation to meet the inference of negligence were questions of fact for the jury. MacDonald, Admrx. v. P. R. R. Co., 348 Pa. 558, 36 A. 2d 492. Defendant’s exculpatory testimony did not establish as a matter of law that the damage was not due to its negligence. As was said in Hershey v. Pittsburgh & W. Va. Rwy. Co., 366 Pa. 158, 161, 76 A. 2d 379: “That, of course, presupposes that the defendant’s exculpatory evidence is credible and will, perforce, be so accepted by the jury. But, of course, no such assumption is permissible. The defendant’s proofs in material regard being oral, binding instructions in its favor on the basis thereof could not be given: Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 238, 163 A. 523; Satterwhite v. National Powder Company, 362 Pa. 133, 139, 66 A. 2d 278; MacDonald v. Pennsylvania Railroad Co., 348 Pa. 558, 562-563, 36 A. 2d 492”. In Commonwealth v. Montour Transport Co., 365 Pa. 72, 73 A. 2d 659, the action was for damages to a state highway by the burning of a tractor-trailer cargo of gasoline owned by the defendant. The doctrine of exclusive control was held to be applicable and judgment entered for the defendant on preliminary objection was reversed on this ground: “The facts pleaded by the plaintiff, when proven, will afford an inference of negligence that will carry the case to the jury; and the duty will then be upon the
The holding of Ambrose v. Western Maryland Rwy. Co., 368 Pa. 1, 81 A. 2d 895, is not inconsistent with the above conclusions. In that case the court entered judgment for the defendant notwithstanding a verdict for the plaintiff. The defendant railroad delivered a car which it had received from another carrier to the Ordnance Depot in Franklin County. Both doors of the car were sealed when defendant received the car and when it delivered it. Plaintiff’s decedent, an employe of the Ordnance Depot, in the line of duty was directed to open the car to unload it. He broke the seal on one of the doors and as he was attempting to open it, the door fell out of the car and onto him, causing the injuries from which he died. In that case it was said that “a railroad company before delivering a loaded car received from a connecting carrier to a consignee must make an inspection thereof sufficiently thorough to ascertain whether there is any fairly obvious defect in its construction or state of repair which constitutes a likely source of danger”. The character of the inspection in that case however was not for the jury though based on oral testimony because it was obvious that the defect which caused the injury was not ascertainable by reasonable inspection under the circumstances. The defendant’s obligation was to deliver the car to the consignee with the seals unbroken, and the duty of inspection does not involve testing sealed doors of a car for defects of operation. In reality the thing that caused the injury was not within the exclusive control of the defendant railroad in the Ambrose case.
The issues in the present case were of fact for the jury. There was no objection to the manner of their submission.
Judgment affirmed.