Koller v. Pennsylvania R. R. Co. , 351 Pa. 60 ( 1944 )

As a result of an accident in which a train of defendant, Pennsylvania Railroad Company, collided with the rear of a train of the New York Central Railroad Company, Arthur Koller, plaintiff, sustained severe and permanent injuries. He brought this action in trespass to recover compensation. After defendant's motion for a directed verdict was refused, the jury found for plaintiff. The court later entered judgment n. o. v. and plaintiff appealed.

The accident occurred on June 25, 1941, near Jersey Shore, Clinton County, Pennsylvania, while a New York Central train, in charge of Koller as conductor, was being operated over the tracks of the Pennsylvania Railroad. The train had left Avis, travelling west, for Cherry Tree. From Avis to Ridge Tower the trip was routed entirely over Pennsylvania lines. At Ridge Tower the route crossed the eastbound track of the Pennsylvania Railroad, entered upon the rails of the New York Central, and proceeded to Cherry Tree. When the train reached Drury Tower, an intermediate point on the route before Ridge Tower, the engineer was given an order in writing by the tower operator, an employee of the Pennsylvania Railroad, directing him to take the train onto the siding at Ridge Tower and to remain there for further orders. No notice was given Koller, and he did not know of the order given his engineer. According to the safety rules of both railroads, the conductor, who is actually in charge of the train, should also receive a copy of any such message. That he did not receive such a copy is admitted.

At the time of the accident both trains were travelling on a permissive block, which, according to the rules of both railroads, permits the movement of one or more trains in the same direction in the block, and it is the duty of the engineer of any train entering such block to keep his train under such control that he can stop within the range of vision. Under the same rules, while a train is in the block, the operator of the tower can set the signal on "permissive" and the train following is thereby advised that the track is obstructed. While the New York Central train was thus travelling within the block, a Pennsylvania train was admitted to the block on such permissive signal. When the New York Central train slowed down preparatory to going upon the siding, its brakeman left the caboose and, as is also required by the safety rules, placed two torpedoes on the track to warn approaching trains of his train's presence. After returning to the caboose the brakeman saw the Pennsylvania train approaching and immediately tried to attract its engineer's attention by displaying and waving a regulation red flag. Perceiving that the approaching train was evidently not going to stop, the brakeman cried a warning to plaintiff, and jumped to safety. Plaintiff, being seated in the upper part of the caboose, did not have time to vacate it before the Pennsylvania train crashed into and demolished it. As a result, his one arm was amputated and a vertebra in his back crushed.

The Pennsylvania Railroad Company does not seriously dispute its negligence, nor could it, for the record is replete with evidence of its liability. For instance, the engineer of its train, testifying for defendant, admitted that the day was clear and sunny and that the visibility was good. He stated that he had a clear view for "between three and four hundred feet", that he knew he was operating in a permissive block and realized what his duties were under such signal. He also testified that he had heard the two torpedoes explode and that he had seen the efforts of the brakeman who tried to flag him. He asserted that ordinarily he could stop his train within a distance of three hundred feet but that in this instance he was unable to do so even with the use of emergency air.

Defendant contends that if it is liable at all, it is jointly liable with the New York Central Railroad Company, and that since on December 22, 1941, plaintiff released¹ that Company for a consideration of $4,500.00, it too was released.

There can be no doubt that if the New York Central had been joined as a defendant, the trial court would have been compelled to give binding instructions in its favor, because there is no evidence showing any liability on its part. It would have been declared blameless as a matter of law.

The sole ground of the learned court below for granting judgment n. o. v. was that this release was given. We fully realize the correctness of the proposition set forth by Mr. Justice STERN in Thompson v. Fox, 326 Pa. 209, 192 A. 107, that there can be but one satisfaction for the same injury and that the release of one wrongdoer operates as a release of all:Mason v. Lavine, 302 Pa. 472, 153 A. 754; Peterson v. Wiggins,230 Pa. 631, 79 A. 767.

But before there can be a joint tort, there must be a community of fault which occasioned the accident: Cleary v.Quaker City Cab Co., 285 Pa. 241, 132 A. 185; Holstein v.Kroger G. B. Co., 348 Pa. 183, 34 A.2d 491; Landis v.Conestoga T. Co., 349 Pa. 97, 36 A.2d 465. Here the testimony is clear and, when combined with the physical facts, leaves no room for doubt that the New York Central was in no way responsible for the accident. Since there was no community of fault, there was no joint tort. In a situation such as this the law is equally clear that a release of one not shown to be liable does not release a tort-feasor: Union of RussianSocieties v. Koss, 348 Pa. 574, 36 A.2d 433; Turner v. Robbins, 276 Pa. 319,120 A. 274; Rosenfeld v. Stauffer, 121 Pa. Super. 103,182 A. 714; McClure v. Penna. R. R. Co., 53 Pa. Super. 638.

Throughout the entire case plaintiff carried the burden of proof of defendant's negligence; Hunt v. Aufderheide, 330 Pa. 362,199 A. 345; Ealy v. N.Y. Central R. R. Co., 333 Pa. 471,5 A.2d 110; Dickey v. Boggs Buhl, Inc., 345 Pa. 453, 29 A.2d 1. And the jury found as a fact, that defendant was solely responsible for the accident, that issue having been submitted to the jury in the following language by the trial court: "Your duty then is to determine what brought about the accident: Whether or not the Pennsylvania employees were negligent alone? Whether or not the New York Central employees were negligent alone? Or whether or not the negligence of the employees of both of the railroads acting together brought about the injury to the plaintiff? If you find that there was no negligence on the part of anybody, or if you find that the negligence of the employees of both the New York Central and the Pennsylvania railroads operating together brought about the accident, or if you find that Mr. Koller's actions or failure to act were negligent and that negligence was a . . . contributing cause of the happening of the accident, then you will find a verdict for the defendant. It is only if you find that the Pennsylvania Railroad was solely guilty of negligence which brought about the accident that you go further and render a verdict for the plaintiff and against the Pennsylvania Railroad."

Judgment reversed and here entered in favor of plaintiff in the amount of the verdict. Costs to be paid by defendant.

¹ The release is as follows: "Arthur W. Koller, Cherry Tree, Pennsylvania.

"For the sole consideration of Four thousand five hundred and no/100 Dollars, received to my full satisfaction from The New York Central Railroad Company, and without any other representation, promise or agreement, written or oral, I hereby release and discharge the said The New York Central Railroad Company from all claims, demands, grievances and causes of action of every kind whatsoever and including, but without limitation of the foregoing, all liability for damages of every kind, nature or description now existing or which may hereafter arise from or out of injuries and damages received by me at or near Keating Junction, [near Jersey Shore, Clinton County] State of Pennsylvania, on or about the 25th day of June, 1941.

"Specifically saving and reserving all rights of every kind that I have or may have against The Pennsylvania Railroad Company on account of injuries received by me. This release is intended not to in any manner operate as a release, partial or otherwise, of any claim or claims against The Pennsylvania Railroad Company.

"I have read and understood this release.

"In witness whereof, I have hereunto set my hand and seal this 22nd day of December, 1941. Arthur W. Koller (Seal)".