373 Pa. 632 | Pa. | 1953
Lead Opinion
Opinion by
The plaintiff, H. R. Hogg, as. adminstrator of the
On August 23, 1949, about 9:30 p.m., a dark but clear night, Harold W. Hogg, the decedent, then 18 years of age, was driving his motorcycle in an easterly direction on an improved black top highway known as 'State Highway Route 10068, leading from Slippery Rock Borough toward the City of Butler and passing through a small village called Branchton where four tracks of the defendant railroad crossed the road at approximately right angles. The tracks ran north and south, the highway east and west. The train with which decedent collided was going north on the second track from the west. The decedent’s motorcycle ran into the middle of the train which consisted of 101 hopper (also called gondola) cars which were about 11 feet in height. The train had completely occupied the crossing before the motorcycle reached it. The decedent received injuries resulting in his death two days later. His motorcycle was so badly damaged it was sold as junk for |30. The decedent was very familiar with the railroad crossing, having lived within 800 feet of it all his
The railroad tracks were straight for about 500 feet south and one-half mile north of the crossing which was 47% feet wide from east to west and 28 feet wide from north to south. It consisted of planks fastened down with lag screws. Some of the lag screws were either missing or loose and this permitted the planks to work up and down as a vehicle crossed over them, but none of the planks was missing. Ash roads from the north and south connected with the improved highway just west of and near the railroad tracks, as a result of which some ashes were scattered on the highway and upon the railroad crossing. A standard railroad cross-buck warning sign 8 to 10 feet high stood 9 feet west of the tracks and 3 to 5 feet south of the highway, having reflector buttons on it and the statement “4 Tracks”. 200 feet or more west of the crossing on the south side of the highway there was a Pennsylvania Department of Highways railroad warning sign. The crossing was in a rural area and there were no buildings west of the tracks either north or south of the highway to obstruct the view of one approaching the crossing from the west. For more than 350 feet west of the railroad crossing the highway was straight. There was a 4% rise in the highway from a point 275 feet west of the railroad crossing to a point 80 feet west thereof, then a 1% rise from that point to a point about 20 feet from the crossing, and the remaining 20 feet of the highway was level to the crossing. Plaintiff adduced testimony that because of the upgrade approach of the highway to the crossing, the lights of a motor vehicle approaching from the west on a dark night would not reveal railroad cars on the crossing until the motor vehicle was close to it. In his Statement of Question Involved which was concretely related to the accident, appellant stated that “. . . the lights of
There were no flashing lights or illuminating lights at the crossing. On different occasions, over a period of years, recommendations were made by residents near the crossing and by staff officers of the company that the crossing should be lighted, either by an overhead light or by flashing lights. The railroad management considered these recommendations but concluded that such additional precaution was not necessary.
There was only one eye witness to the accident. James G. Grossman, called by the plaintiff, testified that before the accident he was traveling eastward on the highway; that he saw defendant’s train coming from the south when it was a considerable distance away; that because the woman companion
He also testified that the planks on the crossing were loose, some bolts missing; that some ashes from the two ash roads were on the approach to the crossing and “a few” on the crossing itself; that the planks had been loose for two or three years, causing them to rattle when a vehicle passed over them; that ashes from the ash roads had been scattered on the highway over a long period. When asked by plaintiff’s counsel as to the atmospheric conditions, he said that it was a “Pretty dark night, and kind of a mist coming from the creek, made kind of a dull night, like moisture in the air.”. The creek was about 350 feet west of the crossing. He did not testify, nor did anyone else, that the “mist” interfered to any extent with vision. He testified that he was parked 63 feet north of the highway and 30 feet west of the railroad tracks. From this point he apparently had no difficulty in seeing the train and the motorcycle, and exactly how the collision occurred at the railroad crossing. E. S. Gould, called as a witness by plaintiff, was driving his automobile westwardly to
While a decedent is presumed to have used due care, this presumption cannot obtain where the plaintiff’s own testimony establishes the decedent’s negligence: Rank v. Metropolitan Edison Company, 370 Pa. 107, 87 A. 2d 198; Winkline v. Pennsylvania Railroad Company, 347 Pa. 136, 31 A. 2d 535; Weldon, Admrx. v. Pittsburgh Railways Company, 352 Pa. 103, 41 A. 2d 856. After considering all of the evidence in this case most favorably to the plaintiff as we are obliged to do, it clearly establishes negligence on the part of the decedent. He manifestly entered upon and proceeded across the railroad crossing after the lights of his motorcycle must have disclosed the railroad cars moving over it. At least from the time when the motorcycle reached the level stretch of 20 feet immediately west of the crossing, the decedent must have seen the tracks and the moving train as well, because the testimony was that the gondola cars, however much their color blended with the black top highway, were nevertheless visible. He was familiar with the crossing, having lived all of his life within 800 feet of it and having frequently passed over it, both in the daytime and at night. It was his duty to have his vehicle under such control as to be able to stop before entering' the crossing. If in ascending the upgrade his lights did not disclose the road beyond the crest of the upgrade,
In the present case it is clear that the decedent did not, or because of the speed at which he was traveling could not, stop before entering upon the crossing. There is no competent evidence that the ashes said to have been scattered upon the highway were the proximate or even a contributing cause of the accident. The same is true of the looseness of some of the planks upon the crossing. And it is to be observed that neither the looseness of the planks nor the “few” scattered ashes on the crossing would have been encountered until the train had passed, if the decedent had stopped as he was required to do before entering upon the crossing. It may be added with respect to the ashes on the highway that the railroad company was not responsible for the condition of the highway. See Pittsburgh Southern Railway Company v. Taylor, 104 Pa. 306.
But appellant contends that assuming that the decedent was guilty of contributory negligence, the defendant was guilty of wanton misconduct to which contributory negligence is not a defense. It is true that contributory negligence is not a bar to recovery in an action for injury caused by wanton misconduct: Tanner v. Pennsylvania Truck Lines, Inc., et al., 363 Pa. 136, 69 A. 2d 366, but in such case there must be evidence that meets the legal definition of wanton misconduct. The latter differs from ordinary negligence not merely in degree but in kind. In Kasanovich, Admrx. v. George et al., Trustees, 348 Pa. 199, 34 A. 2d 523, Justice, now Chief Justice Stern, said at p. 203: “. . . It must be understood, of course, that wanton misconduct is something different from negligence however gross, — different not merely in degree but in kind, and evincing a different state of mind on the part' of the tortfeasor. Negligence consists, of . inattention-or-inadvertence) whereas
Appellant contends that the railroad crossing here involved was extrahazardous; that the defendant realized the danger to the traveling public and its failure to provide flash or flood lights or other device at night to warn of the occupancy of the crossing by a moving train indicated a willingness to inflict injury and a conscious indifference to the perpetraton of a wrong. In Wink et al. v. Western Maryland Railway Company, 116 Pa. Superior Ct. 374, 176 A. 760, an automobile driven by the minor plaintiff at night collided with the 39th and 40th cars of a 96-car freight train which was passing over a highway crossing. In reversing the lower court which held that there was sufficient evidence of an extra-hazardous situation to require the jury to determine the necessity for warnings, the Superior Court, after citing a number of cases, said at p. 379: “. . . These cases all hold that signals for trains approaching a highway crossing are solely for the benefit of drivers on the highway, so as to warn them of an oncoming train, and that they are not required if, as here, the train is actually on the crossing when the driver arrives. Then no other signals or warnings are necessary in the absence of a statute. There is none in this Commonwealth imposing such a duty on railroads.”. (Emphasis supplied).
In Everetts v. Pennsylvania Railroad Company, 330 Pa. 321, 198 A. 796, this Court in a per curiam opinion adopted the following from the opinion, of the court below:.“‘The undisputed evidence proves that, this crossing was actually occupied by the train of the defendant company when the lights of the automobile first brought it.into view.,. ■ Although this crossing, must,be considered
In the recent case of Yolton v. Pennsylvania Railroad Company, 368 Pa. 429, supra, (a nighttime railroad crossing accident), this Court affirmed the opinion of the lower court wherein it was said at pps. 432, 433: “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.”. In that case testimony was given by residents of the neighborhood that the crossing was very dangerous and extrahazardous and that it was
In the Yolton case we held that the evidence did not support a finding of ordinary negligence. We are here asked to find the defendant guilty of toanton misconduct. Appellant claims that the occurrence of previous accidents at the crossing, of which the defendant had actual or imputed knowledge, required that remedial action be taken by it, but in each of the prior accidents the vehicle operator had failed to stop before entering the crossing. Failure to anticipate another’s negligence is. not negligence: Szukics v. Ruch, 367 Pa. 646, 81 A. 2d 903;
In the present case if the defendant were held guilty of wanton misconduct in not providing additional warnings at the crossing, certainly the decedent must be held to have been equally guilty of wanton misconduct when, familiar with the crossing and with knowledge that he was approaching it, he recklessly assumed that there would be no train on the crossing and forfeited his life.
Judgment affirmed.
She subsequently became Grossman’s wife, was subpoenaed but, according to him, was too ill to testify. She was related to the plaintiff and the deceased.
Employes of the defendant testified that they examined the crossing early the next morning and found marks described as gouges west of the northbound track at the apparent point of collision, which extended as a single skid mark for a distance of about 60 feet west of the track.
While we are obliged to review the testimony in the light most favorable to the plaintiff, we are constrained to observe that the
In Rich v. Petersen Truck Lines, Inc., 357 Pa. 318, 53 A. 2d 725, this Court, at p. 321, adopted the following language of the lower court: “Section 1002 of the Vehicle Code of May 1, 1929, P. L. 905, and iis amendments, 75 PS 501, provides, inter alia, that ‘no person shall drive any vehicle upon a highway ... at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.’ The assured clear distance rule has been the law of Pennsylvania for many years. It was established as a common law principle and imbedded in our law by the above statute. Our courts have called it, ‘the only safe rule’: Simrell v. Eschenbach, 303 Pa. 156, 160; ‘inflexible’: Gaber v. Weinberg, 324 Pa. 385, 387; ‘fixed and unchangeable’: Stark v. Fullerton Trucking Co., 318 Pa. 541, 544; the statute has been applied in many cases as requiring judgment n.o.v. against operators of vehicles who have driven into obstructions on the highway, regardless of the negligence ef the person who created’ the hazard. The rule has been applied to hold -plaintiffs guilty of contributory negligence for having driven into obstacles on the highway when their range of vision was shortened by fog': Lauerman v. Strickler, 141 Pa. Superior Ct. 240; Cormican v. Menke, 306 Pa. 156; Shoffner v. Schmerin, 316 Pa. 323;
Dissenting Opinion
Dissenting Opinion by
The crucial test as to legal responsibility in this case is not, according to my opinion, what occurred on the night of August 23, 1949, but what happened during the previous fifteen years which prepared the fatal barricade against which 18-year old Harold Hogg rode to his untimely death.
The lower court stated in its opinion: “There were no flashing lights or illuminating lights at the crossing to disclose the presence of the railroad cars upon the
As far back as 1934 the unlighted state of the Branchton crossing was a matter of discussion among the officials of the defendant Bessemer & Lake Erie Railroad Company. In the early part of that year, T. C. Whiteman, General Counsel and Safety Director of the railroad wrote to F. R. Layng, Chief Engineer, enclosing a complaint from one Vern II. Kyle about the perilous intersection. On February 10, 1934, the Chief Engineer replied to the General Counsel and Safety Director: “I talked this over with Mr. Johnson this morning, and we both feel that the time will come when some protection should be arranged for, but we are both in doubt as to whether we should press it at this time. We will both think it over and I will take it up again with you later.”
On May 10, 1934, E. J. McGeary, Assistant Superintendent of the railroad, wrote to W. M. Johnson, General Superintendent, — “Recently I was in Branchton and my attention was called to this crossing and a comparison made between it and the Annandale crossing. The latter crossing with flash light signals and practically no rail traffic and Branchton with numerous rail movements and highway traffic increasing, with no flash light signals.”
On October 8, 1941, Chief Engineer Layng advised Whiteman that it might be difficult to install flashing lights but he knew of no other method for supplying the needed protection.
On October 9, 1941, Mr. Whiteman replied to Layng: “However difficult it is, if flashing lights could be made satisfactory, we feel we ought to do it.”
On October 15, 1941, Mr. Pflasterer, Safety Engineer, informed Chief Engineer Layng that a preliminary study revealed that the crossing could be given the required protection by the introduction of flashing light signals.
On May 15, 1946, Mr. Snyder, Vice President and General Manager, wrote Chief Engineer Layng that people in the vicinity suggested the lighting up of the crossing at night by overhead street illumination. He specified: “If, after investigation, you find this installation desirable you may proceed to make the installation. If it is not desirable, please indicate why.” On May 26, 1946, Lyang replied: “I do believe that if we go to the expense of flood lighting a crossing from both sides that it would be possible to provide sufficient illumination to do some good providing it be kept in mind that no illumination will be effective in fog.” Layng added in his letter that they should go slow in making the installation because such an improvement might spur requests for similar installations at other points.
It will be recalled that in 1934 the Chief Engineer solemnly wrote that he and Mr. Johnson, the General Superintendent, felt that the time would come when “some protection would be arranged for,” but they both doubted that they should press it “at this time.” By 1946, 12 years later, they still had not pressed it, even though in the meantime three persons had come to grief at this ominous crossroad whose lurking dangers after dusk were hidden by the shrouds of night.
But the warnings had not yet ceased. One day in the summer of 1947, Vern H. Kyle, who lived only 115 feet from the fatal point and who had vainly protested as far back as 1934 about the perils of the Branchton crossing, telephoned the office of the railroad company and notified C. S. Leet, Assistant Manager, that lineman of the railroad company were working at the crossing that day: “. . . He said to me, ‘Do we have the wiring in the depot?” I said, ‘Yes’. He said, ‘Where is it?’ I said, ‘Right across the crossing. I thought I would call you now, because the linemen are there, in order that without too much extra expense they could go ahead and do it, while they are there.’ He said, ‘Well, we will see about it’; but he said, ‘You know we don’t do things that quick.’ ”
Is two years “too quick” to remove a definitely established menace to life and limb? This conversation occurred in the summer of 1947; and in August, 1949, Harold Hogg was killed.
One witness, a James Colosimo, testified that the railroad company knew of this death trap at Branchton
The jury found specifically that the Branehton crossing was “peculiar, unusual, extra-hazardous and very dangerous at the time of the accident.” It also returned the finding that the defendant railroad company was “guilty of wanton misconduct.” What was that wanton misconduct?
Coming events cast their shadows before them. It was just as inevitable that a tragedy would some day occur at Branehton as it is that night follows day. It was known that when a freight train filled the crossing at night, the black hulk of the cars would blend with the blackness of the highway and the nocturnal darkness; it was known that because of the rise of the highway to the crossing a vehicle’s lamps would not light up the railroad until the vehicle was only some 20 feet away, when, because of the loose planks and the ashes on the highway, and the short distance for traction to take hold, a vehicle could not stop in time to avoid collision with any cars on the tracks. The safety directors, the safety engineers, the superintendents, the managerial staff of the railroad knew all this for fifteen years and did not lift a single bulb to illuminate and warn of the peril — simply because of the expense involved in supplying life-saving beacons and because they did not want to be rushed.
' Wanton misconduct is not restricted to rapidly moving crises, e.g., a locomotive bearing down on a stalled
“The duty of a railroad company not to do any wilful or wanton act is owing to the public generally, and is applicable in favor of anyone who happens to be in such position as to be the sufferer by the violation of the duty.” (44 Am. Jur. 639, §422; Restatement, Torts, Sec. 500, p. 1295, comments (c) (d).)
When the jury found, on competent evidence, that the defendant company was guilty of wanton misconduct, it did not matter whether the plaintiff’s decedent Avas or was not negligent. The fact that Harold Hogg was familiar with the crossing and had crossed over it in night and day, emphasized all the more the camouflaged appearance of the cars against the background of the night and the darkness of the black top roadway. One Avho is deceiAred by a masked danger cannot be convicted of contributory negligence. Travellers on the highway have the right to expect that drawbridges will be in place, that road excavations will be covered up and that railroad trains at crossings will be announced with one of various types of warning: a ringing bell, a flashing light, a swinging lantern, or a verbal admonition. The necessity of movement on our thoroughfares is just as important as the requirement of stoppage at indicated places. Furthermore, no witness testified that Harold Hogg did not stop before proceeding to cross the tracks. Thus, the plaintiff is entitled to have adjudged in his
I would reverse the judgment of the lower court and reinstate the verdict of the jury.