This is an action brought by the appellee, Yvonne R. Buchecker, Administratrix of the Estate of Eugene T. Bu-checker, deceased, under the wrongful death and survival statutes to recover for the death of her husband, who was killed in a collision with a train of the appellant railroad at a grade crossing on State Highway Route 309. After a trial, the jury returned a verdict in favor of the appellee for $95,000.00 in the wrongful death case and for $405,000.00 in the survival action. The lower court denied appellant’s post trial motions for a judgment n. o. v. and for a new trial and the appellant appealed.
Viewing the evidence in a light most favorable to the verdict-winner, as we are required to do,
Glass v. Freeman,
At the time of the impact the decedent was alone in his car and was driving in the left southbound lane at 40 miles per hour; appellant’s train was travelling at 29 miles per hour. The front left of appellant’s engine hit the right front of decedent’s automobile and carried it 900 feet east of the area of impact. A car operated by one Nancy Horne Chetry proceeding in the right southbound lane parallel to decedent’s vehicle and slightly ahead of it was also struck by the engine.
The only warning devices for vehicles in southbound traffic connected with the crossing were a state highway sign marked “R.R.”, 220 feet north of the tracks; a cantilever extending from a pole at the side of the highway over the same on which were mounted flashing red lights furnished by 18 and 10 watt bulbs; a crossbuck fastened on the side pole with the words, “Railroad Crossing” and another sign also fastened to the side pole stating, “Stop on Red Signal”. The flashing red lights, if functioning correctly, were designed to activate by relay mechanisms when tripped by an eastbound train 1,150 feet from the crossing.
The railroad tracks as it came eastward to the southbound lanes of Route 309 proceeded through a deep earthen cut and large embankments bordered the tracks on both sides. The embankment on the north side of the tracks obstructed all views of rail traffic by motorists approaching the cross *42 ing in the southbound lanes of Route 309. The police officer in charge of the investigation of the accident estimated the height of the north embankment at 10 feet; appellant’s claim adjuster measured it west of the crossing along the tracks at 8 feet, 3 inches.
A southbound vehicle operator on Route 309 could not have a clear view of the tracks westerly until the front bumper of his vehicle was three feet from the north rail. With the bumper 7 feet, 8 inches north of the tracks, the driver would be 16 feet, 3 inches and would have an unobstructed view westerly for sixty feet. The overhang of the train engine and cars, is two feet, six inches. To have an unobstructed view of the eastbound tracks at the crossing, a motorist would have to stop his car six inches north of the overhang of the oncoming train; to stop five feet north of the oncoming train, the motorist would have an unobstructed view of only sixty feet. Expert testimony in the case established that a vehicle moves IV2 feet per second for every mile per hour of speed. Thus a southbound motorist at 40 miles per hour would travel that five feet in lh of a second.
Nancy Horne Chetry, a driver on the southbound lane, hereinbefore referred to, stated that she traversed the crossing 500 times a year, for four years and never saw a train. She said the morning sun was in the center of the highway just above the horizon. Mrs. Chetry testified that the bright light “sort of distorted your vision”; “it wasn’t that you couldn’t see, but it was like the sun distorted it.” The witness approached the crossing in the rightbound lane going 40 miles per hour. Decedent’s car was slightly behind her in the left lane. Several vehicles were in front of Mrs. Chetry and none slowed, braked or stopped at the crossing. Mrs. Chetry stated that she saw nothing, neither train or flashing lights and heard nothing until the train whistle sounded at the instant she was struck in the rear, spinning her vehicle into the northbound lane.
Frank Stearn was driving south ahead of Mrs. Chetry, said he only saw a train on the crossing once or twice a year. *43 Steam’s radio was off, he had no hearing problem, his window was open and he heard no sound until the blast of a train whistle just as he passed over the tracks. He observed the collision of the train with Mrs. Chetry’s Volks wagon in his rear view mirror. Before this day he had observed flashing lights at the crossing, but they did not flash on this day of the accident. He stated, “I firmly believe the light was not on. No one can convince me that light was flashing.”
Randy Diefenderfer, a motorist on the northbound lane, said he saw flashing signals from a hill one-quarter of a mile south of the crossing. His radio was not working, his hearing was unimpaired and his left window was “cracked open”, and he heard no sound from the train until he stopped 50 feet from the tracks. Mr. Diefenderfer said he could not see the train until it actually entered the intersection.
Appellant contends that it is entitled to a judgment n. o. v. (a) because the trial judge refused to apply the stop, look and listen rule to the case, and (b) that there was no evidence to support the verdict against the appellant.
Appellant also contends that it is entitled to a new trial, (a) because the trial judge refused to instruct the jurors on the stop, look and listen rule and read appellant’s points for charge on the subject, nos. 13, 14, 15, 17, 18, 20, 21, 27, and 33 to the jury; (b) the trial judge failed to apply the 20 mile speed limit imposed by the Vehicle Code, 75 P.S. 1002(b)(3), and instruct the jury thereon; (c) the trial judge erred in instructing the jury on the sudden emergency rule; (d) the trial judge erred in refusing points for charge relating to impairment of vision; (e) the trial erred in permitting evidence relating to different safety precautions in effect at other crossings; and (f) that the verdict was excessive and the jury disregarded the instructions on the survival and wrongful death statutes.
Motion for Judgment N.O.V.
Appellant relies heavily upon the rule that requires a motorist to stop, look, and listen before entering upon a
*44
railroad crossing. A failure to comply with the rule constitutes contributory negligence. See
Tomasek v. Monongahela Rwy. Co.,
However, it is clear that in recent years, our appellate courts, as the opinion of the lower court reminds, “have moved away from the absolutist posture that characterized” the former application of the rule.
The most recent decision on the stop, look, and listen rule is
Evans v. Reading Co.,
Also, in
Evans,
we said: “Viewing the record with these concepts in mind, we cannot say that the lower court erred in denying appellant’s motion for judgments N.O.V. The jury in this case could have found that due to the sun or the foliage or both, the decedent did not see the crossing or did not see it until it was too late to stop. Under the circumstances, the decedent’s failure to stop, look, and listen would not constitute contributory negligence.”
In
Johnson v. Pennsylvania Railroad Co.,
“Whatever may have been the Johnsons’ familiarity with the crossing, they were still helpless in the face of the physical impediments which cut off a clear view of the tracks.”
So too, in
Fallon v. Penn Central Transportation Co.,
It has been pointed out elsewhere in this opinion that the railroad tracks were in a deep cut with a high embankment on the northside so that a southbound motorist could not obtain an unobstructed view of the tracks until the front bumper of his car was three feet from the nearest rail and that the overhang of the train (engine and freight cars) is two feet, six inches allowing only a six inch safety margin for the motorist. The “first view” position established by the appellant places the front bumper of a car 9 feet from the train. The lower court pointed out that the “whistle board was located 1,484 feet west of Route 309; that the train was travelling approximately 30 miles per hour and an eastbound train would travel the distance in 33 seconds. If *47 the flashers were activated when the train was 1150 feet from the crossing the flashers would be operating 25V2 seconds before the train reached the highway. If the customary signal was used (two long, one short, two long) there would be 5 to 10 second periods when no whistle was sounded. Furthermore, the sound warnings, by whistle and bell, if given, were given in a deep ditch or cut where the sound waves could only be impeded by the sides of the embankment and so deflected that they could not adequately warn the southbound motorists on Route 309 and the factor was undoubtedly considered by the jury.
The court below properly held that the decisions in Evans, Johnson, Geelen and Fallon took the case out of the stop, look, and listen rule. It was as a practical matter impossible to look westerly down the tracks from a place of safety and the failure of plaintiff’s decedent to stop under the circumstances did not bar recovery. Furthermore, when we consider the evidence that no motorist ever stopped in the absence of a flashing red signal; evidence that the signal was not operating at the time; evidence that the signals were so placed that the light of the rising sun affected the visibility of the signals; evidence that the appellant railroad placed a sign on their side pole stating “stop on red signal”; and the unreliability of the sound warnings, these considerations preclude the conclusion that the decedent did not as a matter of law conduct himself as an ordinary prudent, reasonable man under the circumstances.
The appellant argues there was no evidence to support the verdict because the jury in finding for the appellees, gratuitously found no negligence on part of the train crew. However, that does not, in any sense, mean that the appellant railroad was not negligent. Appellant overlooks the overwhelming evidence which refers to the inadequacy of the crossing protection afforded southbound travellers on Route 309. There are several issues, independent of the conduct of the train crew, concerning negligence of the appellant: (1) Whether the flashing signals were improperly
*48
installed so that the rays of the early sun on the warning device could mislead southbound motorists or fail to convey the warning. (2) Whether the appellant knew or should have known that physical obstructions formed a visual barrier to the traveller so that he could not see far enough down the tracks to be adequately informed of the approaching train. (3) Whether physical obstructions impeded the auditory warnings so that they were inadequate. We have stated that the evidence and all reasonable inferences arising therefrom must be viewed in a light most favorable to the verdict-winner.
Skoda v. West Penn Power Co.,
The evidence in this case sufficiently established that appellant maintained an inherently dangerous railroad crossing in a manner that was inadequate and below standards that due care would require for the safety and protection of travellers on the southbound lanes of Route 309. It was for the jury to resolve these matters.
The motion for Judgment N.O.V. was properly denied.
Motion for a New Trial
Appellant contends it is entitled to a new trial because the trial judge refused to charge on the stop, look and listen rule and read appellant’s points for charge nos. 13, 14, 15, 17, 18, 20, 21, 27, 33. The trial judge properly refused because it would have required a finding for appellant since it was undisputed that the decedent did not stop. The court did, however, inform the jury that there was such a rule of law but that it did not apply in this case.
The appellant relied entirely on the stop, look and listen rule in its defense. We discussed this area of the case in connection with the motion for judgment n.o.v. The old *49 law required a motorist to stop, look and listen before entering upon a railroad grade crossing and failure to do so barred recovery. We have noted before, however, that in recent years our appellate courts have moved away from the former application of the rule, in the decisions in Evans v. Reading Co., (supra); Johnson v. Pennsylvania Railroad Co., (supra); Geelen v. Pennsylvania Railroad Co., (supra); and Fallon v. Penn Central Transportation Co., (supra). We said that these decisions took this case out of the stop, look, and listen rule. The rule today is governed by the more general dictates of the contributory negligence doctrine and one who fails to stop, look, and listen will not be precluded from recovery where the failure is not negligent or where it was not a contributing cause. What we said at length in disposing of the motion for judgment n.o.v. applies here also and is incorporated by reference. The trial judge did not err in refusing to charge as appellant requested.
Appellant complains that the trial judge should have charged the jury that the decedent was required to operate his car at a speed of not more than 20 miles per hour for 200 feet before he reached the grade crossing. We do not agree for two reasons: (1) the 20 mile speed limit of section 1002(b)(3) of the Vehicle Code of 1959 P.L. Section 1002 did not apply to Route 309, and (2) there was no evidence that the speed of decedent’s vehicle was a contributing cause of the accident. While section 1002(b)(3) provides for a 20 mile per hour speed limit for 200 feet on approaching a grade crossing, it is clear that section 1002(b)(8) provides that the “secretary of Highways may . . . establish certain speed zones with a 60 mile an hour speed limit on state highways outside of business and residence districts”. The undisputed evidence here is that Route 309, a limited access, four lane, state highway had a posted speed limit of 60 miles per hour at the time of the accident. The posted 60 mile speed limit superceded the 20 mile limit of section 1002(b)(3). The posting of the 60 mile speed limit establishes that the secretary of Highways set that limit and there is no evidence that he did not properly do so. It is the limit that governed *50 the speed of decedent’s car. Appellant’s contention has no merit.
The appellant contends that the trial judge erred in charging upon the “sudden emergency rule”. The trial judge charged upon the assured clear distance rule because such instructions were required by the decision in
Evans v. Reading Co.,
supra,
Appellant argues that the decedent was not confronted with an emergency because, undisputedly, he had a clear, unobstructed view of the crossing for more than one-fourth (Vi) of a mile stretch leading to the tracks and therefore could not have been surprised by the sudden appearance of the crossing. The fallacy in this argument is that the crossing was not an obstacle. The obstacle or obstruction on the highway was the appellant’s train.
Under the evidence, the eastbound train could not be observed by the southbound decedent until an instant before impact. While the previous assured clear distance may have been one-fourth (Vi) of a mile, giving decedent ample time to stop before colliding with any obstacle, there was no such obstacle within or approaching the crossing in decedent’s view until the instant before the collision. In
Unangst v. Whitehouse,
In
Unangst
v.
Whitehouse,
However, where the evidence leaves some doubt as to whether an emergency situation existed, wholly independent of and not created by the plaintiff’s own acts of negligence or recklessness, it is incumbent upon the trial judge to submit the issue to the jury for its determination.
Reifel v. Hershey Estates,
We cannot say that the trial judge erred in this portion of the charge; neither can we say that the appellant was in any way prejudiced.
Appellant next contends the court erred in refusing to submit points for charge 25 and 26 which read as follows:
“25. A motorist whose vision is obscured by sun, fog, smoke or other vision obstructing elements must either stop or proceed at such rate of speed that he would be able to stop in time to avoid striking any object in the road ahead.
*52 26. If you . find that the decedent’s vision was impaired by sunlight to such a degree that he could not see the railroad crossing or the flashing crossing lights and that in light of the physical circumstances this was not a condition which came upon the decedent suddenly but one which he was aware of for an appreciable length of time as he approached the crossing, and despite this knowledge he failed to stop at the crossing, the decedent was guilty of contributory negligence and plaintiff cannot recover.” (emphasis added)
As to point 25, the substance of the requested point was adequately covered by the trial judge in the portion of the general charge relating to the assured clear distance rule.
As to point 26, the plaintiff’s evidence and contention was that the crossing and overhead flashing crossing lights could be seen but that the color of the signal could not be distinguished because of the sunlight.
Thus this point included therein an issue that was not in dispute and not relevant to the determination of decedent’s contributory negligence. As pointed out earlier in this opinion, the relevant issue was not whether the
crossing
could be seen but rather whether the
train
proceeding towards and into the crossing could be seen. To have read the point as written would have confused and misled the jury into the mistaken legal assumption that the decedent’s admitted ability to see the crossing, coupled with his failure to stop at the crossing under the circumstances embraced in the point, would in and of itself constitute contributory negligence as a matter of law. Under the evidence in this case, the issue of contributory negligence was for the jury. A trial court may properly refuse to read a point as submitted, which would be tantamount to a direction to find a party negligent when the record does not justify such a direction.
Amati v. Williams,
*53 The court in other portions of its charge did instruct the jury that in determining whether decedent was negligent, there was imposed upon him a duty “to be cautious and to use care when weather conditions interfere with his vision”. The court further instructed the jury that “the poorer the visibility at a railroad grade crossing, the greater the duty of vigilance on the part of the driver of an automobile approaching the crossing” and that the jury should consider whether “the sun had any effect on the ability of (decedent) to see the color of the signal, and whether, with the sun in his eyes, he should have further reduced his speed.” Thus the relevant portion of the requested instruction was adequately covered in the general charge.
In determining whether or not reversible error was committed by the trial judge, an appellate court considers the charge as a whole.
James v. Ferguson,
The trial court committed no error in refusing to read points 25 and 26.
Appellant complains of the admission of evidence in respect to other grade crossing protection devices. On cross-examination, plaintiff’s counsel asked the fireman on the train about other types of crossing signals or protection devices along his run. The trial judge overruled appellant’s objections thereto on the ground that the fact that some of the crossings had gates went to the feasibility of other safeguards used by and available to the appellant railroad. Appellant also objected to plaintiff’s counsel’s reference in his closing to the existence of other feasible types of crossing protections. However, plaintiff’s counsel did not argue that the law imposed a duty on the railroad to choose a crossing protection of a particular type, but only of a type which would give adequate notice of a train’s approach.
*54
Appellant argues that the holding in
Cummings v. Pennsylvania Railroad,
While the failure to provide a specific safety device is not negligence per se, this rule does not relieve the railroad company from the duty of providing one at a crossing sufficiently dangerous to require it. “It is generally held that the absence of gates, gongs, or other safety devices may be submitted to the jury, along with the other evidence in the case, for the purpose of enabling them to determine whether, under the circumstances the railroad was guilty of negligence under the particular circumstances disclosed by the evidence at the time of the accident, although under the particular circumstances disclosed by the accident, submission of the question to the jury may not be warranted. Submission of the question of negligence to the jury does not permit them to determine what particular means railroads should have used but whether under the circumstances the means used were sufficient to constitute due care.” 65 Am.Jur.2d § 508, Railroads (citing Cummings, supra). See Postal v. Baltimore & Ohio R. R. Co., 189 F.2d *55 352, 353, 3rd Cir. (1951). Thus, the absence of the safety gates may be considered by the jury along with other evidence in this case.
Finally, even assuming the trial judge may have been in error in permitting the cross-examination of appellant’s witness as to other types of crossing protection along the particular run here involved, the error was harmless and was cured by the court’s incorporation in its charge of the very language contained in appellant’s points 37 and 38. The charge of the court in this respect was as follows:
“In determining whether or not the Reading Company was negligent in this case, you must consider whether, under all the circumstances, the Reading Company exercised reasonable care.
When considering that question, you should keep in mind the general rule that there is no common law duty on the part of the Reading Company or any other railroad to place any particular types of warnings at grade crossings, but what is required is that the precautions at grade crossings be reasonable under the circumstances.
In determining whether or not the Reading Company is negligent in this case, the law does not permit a jury to decide in what manner a railroad company should perform its duty to the public at a grade crossing and to substitute its judgment for the Reading Company’s proper officers. You are merely permitted to pass on the question of whether, under all the circumstances of the case, the Reading Company performed its duty to persons upon the highway.”
The Court thus specifically cautioned the jury there was no duty on the part of appellant to place any particular type of protection at the crossing. It is further noted that no exception was taken to the above instructions for the obvious reason that they were given at the request of appellant itself. Thus, the error, if any, did not prejudice the appellant in light of the subsequent curative instruction which eradicated and specifically eliminated from the jury’s consideration any duty on the part of the Railroad to maintain any
*56
particular type of protection at its crossing. See
Wolverine Glass Co. v. Miller,
Damages
Appellant argues that it is entitled to a new trial because (1) The verdict is excessive and (2) the jury reversed the awards in the wrongful death and survival actions. We do not agree.
The parties do not dispute that the measure of damages in a survival action is the probable earnings of the deceased during his life expectancy; from. which is deducted the probable cost of maintaining himself and his family had he lived; and (3) reducing the balance to its present worth. See
Murray v. Philadelphia Transportation Co.,
The decedent, Eugene T. Buchecker, born on October 19, 1935, was 34 years of age at his death and was survived by his wife, age 31, and three children, ages 4, 8, and 13. He was employed as a truck helper by the Hess Department Store. His earnings for the last year of his life, regular plus overtime, were $10,377.00. Decedent was a member of the Teamsters Union and the labor contract with Hess’s provided for periodic increases until decedent was getting $7.77 per hour. Appellee’s actuary, David Bunin calculated the total of decedent’s probable past and future net earnings reduced to present worth to be $373,599.00. This figure presumes decedent would have retired at age 65 and his earnings would stop. However, one’s earning capacity does not terminate at 65 and many over that age can and do earn. Decedent’s net earnings would have increased as his children *57 became self-sufficient. The trial judge pointed out that it was obvious all of decedent’s earnings went to family expenses. The appellant complains that the actuary did not deduct the cost of maintaining his family. It is clear, however, that the jury did since it came in with a verdict of $95,000.00 which it obviously intended to be the award in the survival action. This award does not appear to be excessive and does not disturb the conscience of the court.
In the wrongful death action, the bulk of decedent’s net earnings of $373,599.00 would have gone to the support of his family for shelter, food, clothing, medical care, education and recreation. Appellee was entitled to recover the loss of such support in the wrongful death action. Appellee was also entitled to recover for the value of services, society and comfort the family would have received had decedent lived. The evidence set forth loss of services in guidance, tutelage, and moral upbringing decedent provided for his children. Decedent provided recreation for his family in the form of bowling, attending amusement parks, theaters, picnics and similar recreational activities. Decedent worked fixing his home, made a train and gymnasium for the children and played games with them. He took them on trips to New York, Philadelphia and the Jersey Shore. In the cities they visited the zoos and museums. In season, he took his children to the ski areas in the Poconos. These activities had a substantial monetary value. The verdict of $405,000.00 would not seem excessive under the wrongful death action and undoubtedly was so intended by the jury.
DeSimone
v.
Philadelphia,
*58
Appellant relies entirely upon the decision in
Magill v. Westinghouse Electric Corp.,
We think that where the total of the verdicts returned by a jury in a death action are not excessive, the fact that the jury made a mistake and awarded the smaller amount of the verdict to the wrongful death action and the larger amount of the verdict to the survival action so that one is inadequate and the other excessive and there is nothing else to indicate the jury failed to follow the court’s instructions, the law of this Commonwealth is that the mistake should be corrected to avoid another and unnecessary trial.
Our Supreme Court has held that the mistake by a jury in assigning amounts of a verdict to the wrong survival and wrongful death claims is not a ground for a new trial.
Siidekum v. Animal Rescue League,
Judgment affirmed.