Opinion
May 11, 1937.
June 25, 1937.
Practice — Non pros — Laches and prosecution of suit — Prejudice of defendant.
In an action of trespass, judgment of non pros was properly entered for laches in failing to prosecute the suit, where it appeared that more than thirteen years had elapsed since the action was instituted, without justification for the delay, and that defendant would be seriously prejudiced in defense of the action because of the death of a material witness.
Before SCHAFFER, MAXEY, LINN, STERN and BARNES, JJ.
Appeal, No. 160, Jan. T., 1937, from judgment of C. P. Schuylkill Co., July T., 1921, No. 139, in case of John Wildermuth v. Philadelphia and Reading Railway Company. Judgment affirmed.
Trespass.
The opinion of the Supreme Court states the facts.
Rule for judgment of non pros made absolute, opinion by HOUCK, J. Plaintiff appealed.
Error assigned, among others, was judgment of non pros.
P. B. Roads, with him James J. Curran, for appellant.
M. M. Burke, for appellee, was not heard.
Argued May 11, 1937.
This is a grade crossing accident case instituted in the court below May 18, 1921, to recover damages growing out of the collision between plaintiff's automobile and a train of the defendant on June 23, 1920. The statement of claim was filed July 29, 1921. On May 28, 1934, counsel for the defendant obtained a rule to show cause why judgment of non pros should not be entered for laches in failing to prosecute the suit. Judgment of non pros was entered on November 2, 1936. From this action this appeal is taken.
In its opinion the court below states that the defendant would be seriously prejudiced if forced to defend the action at this late day; that one of the eyewitnesses to the accident has died and that no justification for the delay in bringing this suit to trial was established.
The action of the court was proper under our decisions: Potter Title Trust Co. v. Frank, 298 Pa. 137, 148 A. 50; Hruska v. Gibson, 316 Pa. 518, 175 A. 514.
The judgment is affirmed.