Summary
In Yolton v. Pennsylvania Railroad Company, 84 A.2d 501 (Pa. 1951), the Supreme Court of Pennsylvania noted that plaintiff has the burden of proof to show unusual, peculiar and extra hazardous conditions at the crossing for the railroad to be charged with the duty of providing additional warning devices.
Summary of this case from Bouchard v. CSX Transportation, Inc.Opinion
October 3, 1951.
November 13, 1951.
Negligence — Proof — Sufficiency — Railroads — Grade-crossing — Collision.
Where it appeared that at night plaintiff drove his automobile against the seventeenth car of a freight train which was moving across a grade-crossing, it was Held, in the circumstances, that the evidence of negligence was insufficient to support a verdict for plaintiff.
Argued October 3, 1951. Before DREW, C. J., STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
Appeal, No. 161, March T., 1949, from judgment of Court of Common Pleas of Washington County, August T., 1948, No. 394, in case of Richard Yolton v. The Pennsylvania Railroad Company. Judgment affirmed.
Trespass for personal injuries.
The facts are stated in the opinion by CARSON, J., of the court below, in part, as follows:
The defendant filed a motion for a new trial and for judgment n.o.v. within the required time after the jury rendered a verdict for $37,500 in favor of the plaintiff and against the defendant. We shall first consider the motion for judgment n.o.v. It must be remembered in disposing of the motion for judgment n.o.v. that the evidence must be considered in the light most favorable to the plaintiff. Riefer v. Niehl Transportation Company, 309 Pa. 251, 252; Elbell, Administrator v. Smith, 357 Pa. 490, 491.
The plaintiff, Richard Yolton, 23 years of age at the time of the accident, had lived in the vicinity of the accident until about six years ago, when he entered the military service and thereafter established his residence in California. He had returned for a visit and on the night of May 15th, 1948 at approximately 12:30 a.m. was operating his automobile from Burgettstown toward McDonald via a state highway.
Plaintiff produced testimony to show that immediately before the accident he had been traveling at a rate of speed of 25 to 35 miles per hour around a curve down a hill. He was not familiar with all of the road because it had been relocated since he had last traveled it. When he thought he was in close proximity to a railroad crossing, he brought his car to a stop at a point which was between 45 to 50 feet from the nearest railroad track and while so stopped, looked and listened. Not seeing nor hearing anything, he then proceeded slowly. As he did so an automobile which had been parked facing him on his right turned on its headlights and momentarily blinded him. Nevertheless, plaintiff continued forward at a speed of 10 to 15 miles per hour. When he recovered his vision so that he could see, he noticed a large black object some 8 to 10 feet away and directly in front of him. He applied his brakes, heard a thud or scraping noise, and has no further recollection of what happened as he was seriously injured in the collision and remained unconscious for several days.
The plaintiff collided with the seventeenth car of a twenty-three car coal train which was traveling at a speed of between 3 to 8 miles per hour, being pushed by an engine in the rear. The collision occurred in a semi-rural area although there were a few houses and buildings in the immediate vicinity of the place of the accident. The brakes and the lights on the plaintiff's car were in good condition. There was testimony by some of the witnesses that there was a little fog but no one testified that it interfered with vision.
The road as relocated has been in use for about two years but no railroad crossing or warning signals have been erected at the railroad crossing and no such sign or signal was in place as a warning to the plaintiff on the night of the accident.
The plaintiff received severe painful injuries which have permanently disabled him. He has lost for industrial purposes the use of one eye, vision in his other eye has been partially destroyed, and his hearing has been impaired. He received disfiguring scars on his face. Before the accident he was steadily employed at fifty-five dollars per week. By reason of impaired sight and hearing and of headaches, he is unable to do the work required at his former job. He has secured lighter work from his employer, whereby he earns thirty-five dollars per week, but is now unable to work every day.
The defendant demurred to the evidence but the trial judge submitted to the jury the question of the defendant's negligence and the plaintiff's contributory negligence and also at the request of the plaintiff submitted the following special finding which the jury answered in the affirmative: "And now, to wit, December 2d 1948, we, the jurors empaneled in the above entitled case, find specially that the railroad crossing described in this case was peculiar, unusual, extra hazardous and very dangerous at the time of the accident. Answer ___". The jury answered this question "yes". There was testimony given by nearby residents that the crossing was very dangerous and hazardous and that it was difficult to see a train standing or moving slowly over the crossing. The defendant at the close of the trial submitted a point for binding instructions.
The decision of this case depends upon whether it is ruled by Wink et al. v. Western Maryland Railway Company, 116 Pa. Super. 374, in which case the court said, " 'Undoubtedly cases do and will arise where a railroad company, because of peculiar and unusual circumstances rendering the situation extra-hazardous, must in the exercise of reasonable care do things which are not required by statute.' " Many of the conditions in the Wink case are similar to the conditions in the instant case. The Supreme Court in the case of Everetts v. Pennsylvania Railroad Company, 330 Pa. 321, in a Per Curiam opinion, held that the facts there were similar to the Wink case and that there was no evidence to show that the defendant was guilty of negligence.
The plaintiff's contention that the defendant was guilty of negligence, placed upon him the burden of furnishing proof of unusual, peculiar, and extra hazardous conditions, as would take his case out of the rulings in the Wink and Everetts cases. The decisions in other states are of little assistance because of the different statutory requirements. In Pennsylvania we do not have laws compelling railroad companies to provide signals or warnings at grade crossings. Our courts have consistently held that warnings at railroad crossings are solely for the benefit of the users of the highway, that is, in order to warn the traveling public that trains are approaching the crossing. The plaintiff was not struck by an approaching train but ran into the side of a moving train, while the train was actually on and moving over the crossing before the plaintiff's automobile arrived upon the highway. No other warning is necessary to notify the highway traveler when the train is there in front of him.
The plaintiff's argument that warning lights, warning signs, lights, bells, gates, or watchman should have been provided and that not to do so is negligent is not supported by any act of assembly nor by decisions of the courts of this state. Many of the cases cited in other jurisdictions are thus distinguished from the Wink case.
The defendant objected to the admission of testimony produced by the plaintiff to show that the crossing was dangerous and extra hazardous. These objections were overruled on the strength of the Wink and Everetts cases. We find no error in the ruling of the trial judge but are of the opinion that the plaintiff's proof does not measure up to the standard required by the Pennsylvania appellate court decisions. In the case of Commercial Investment Trust, Inc., v. Reading Company, 147 Pa. Super. 129, the plaintiff while traveling an unfamiliar route about 2:30 a.m. at a speed of 30 miles per hour with his lights on low beam failed to see a train moving across the street in front of him until he was about twelve feet from it. The train had emerged slowly from the shadows of buildings. The trial judge had permitted the case to go to the jury, which returned a verdict in favor of the plaintiff, however, judgment for the defendant n.o.v. was entered, which upon appeal to the Superior Court was affirmed. In Venchik vs. Pennsylvania Railroad, 143 Pa. Super. 438, the truck carrying guest passengers collided with a train which was in motion blocking the crossing. The court held that the train's rights were superior and that in so using the crossing the railroad was not negligent.
The plaintiff relies upon Buohl vs. Lockport Brewing Company, 349 Pa. 377, to relieve him of the duty of foreseeing the moving train. This case and the other cases cited do hold that temporary blindness caused by the bright lights of an oncoming or parked vehicle have been recognized as a sufficient excuse for not stopping for clearer vision of the road ahead. This line of cases is of little assistance to the plaintiff. The defendant could not foresee that a parked automobile would be turning on its lights at such a time and in such a manner as to blind drivers approaching the railroad crossing. Rugart vs. Keebler-Weyl Baking Company, 277 Pa. 408, 413.
The plaintiff contends that the absence of a railroad crossing sign, lights, flagman, or signalman, coupled with the fact that the whistle was blown one thousand feet away from the crossing; that the only light on the train was on the locomotive which was back of the railroad coal cars; that there was a little fog; that the dark coal cars were being pushed slowly and noiselessly across the highway at a slow speed; that the view of the railroad tracks on the sides of the highway was obstructed; and that the highway had been so relocated some two years previously that the former roadway provided a place where automobiles park with blinding lights, all together created peculiar, unusual and extra hazardous conditions at the time of the accident and are sufficient circumstances to remove this case from the line of cases established by Wink vs. Railroad Company. Granting that evidence was produced to support these contentions and that the verdict of the jury established these facts, nevertheless, we are of the opinion that such facts are not sufficient to remove the case from the ruling established in the Wink case.
Even where the plaintiff does not drive into the side of a train upon the crossing but is hit by an approaching train upon the crossing, it has been held that the misplacement or absence of a warning sign does not excuse the driver's failure to stop, look and listen. This rule is inflexible. There is no distinction between a siding and a main track. The failure to stop, look and listen is not excused by proving that at the time it was dark or foggy or snowing, or that the crossing was dimmed by dusk. This rule is clearly established by Serfas v. Lehigh New England Railroad Company, 270 Pa. 306, 308 and has been cited in a long line of cases including McCann v. Pennsylvania Railroad Company, 119 Pa. Super., 205. This case holds that the driver must keep such control of his car as will enable him to stop and avoid the obstructions which fall within his view. "Under these circumstances, the court below was correct in entering judgment non obstante veredicto either on the ground of contributory negligence or failure to establish negligence in the operation of the train."
We are convinced that the plaintiff did not produce any evidence of negligence on the part of the defendant. The burden rested upon the plaintiff to prove that the defendant was negligent and that such negligence was the proximate cause of the accident. These questions were submitted with some reluctance to the jury and it found for the plaintiff. After a careful review of the testimony, the court believes that the plaintiff's proof will not support the verdict.
Motion by defendant for judgment n.o.v. granted. Plaintiff appealed.
George I. Bloom, with him Michael Hanna, J. Salem Flack and Bloom, Bloom Yard, for appellant.
Stephen D. Marriner, with him Rufus S. Marriner and Marriner, Wiley Marriner, for appellee.
The judgment of the court below is affirmed upon that part of the opinion of Judge CARSON set forth in the reporter's notes.