Zawacki v. Pennsylvania Railroad

*93Dissenting Opinion by

Mr. Justice Musmanno:

In my opinion the case of Peden v. Baltimore & Ohio, 324 Pa. 444, is controlling of the facts in the case at bar. There, the fireman on a railroad engine, which ran down two children on the railroad tracks, testified that from his place in the engine cab he was watching ahead, “as far as I could see.” Although the children were necessarily within his vision as the train approached them, the fireman testified that he did not see them. This Court, speaking through our present Chief Justice Stern, said: “The jury did not have to accept Gravely’s…