to the accident she did not hear any whistle or bell, nor could she recall whether the bell was ringing after the accident. On the stand, she denied making these statements to Lett, but admitted signing the statement and also the clause averring that she read and understood it. Her only explanation of the contradictions between the statement and her testimony in Court was that she did not actually read the former, but merely glanced over it.
The evidence adduced by the plaintiff is partly negative, and the affirmative evidence is patently in conflict with prior statements made within a few days after the accident. Moreover, the testimony of Miss William and her inability to account for the differences between her statements in Court and her signed statements to Lett is particularly damaging to plaintiff's case.
The defendant produced, as witnesses, three of the crew on the train which figured in the collision in support of its contention that at the time of the accident the engine bell was ringing, the bright beam of the headlight was turned on, and just prior to entering the intersection the engine whistle was sounded four times -- two long blasts followed by a short and a long blast. Clarence D. Rodenbaugh, the yard foreman, testified that he was on the left side of the engine at the time of the accident; that the engine had stopped approximately twenty car lengths (about 800 feet) from Oregon Avenue to await completion of the train; that the clapper bell on the engine was ringing continuously from the time the engine began to move to the time of the accident; that the bright beam of the headlight was on; that the engine whistle was first sounded at about eight to ten car lengths from Oregon Avenue; that four blasts were given -- two long, a short and a long -- the last blast being completed as the crossing was reached; that at this point he yelled to the engineer 'Hold it'; and that he first noticed the Myers car when it was about 150 feet from the crossing, the engine being about eight to ten car lengths away.
This testimony as to the light, bell and whistle was confirmed by the testimony of Anthony G. Kelly, the engineer, and Lawrence Granthan, the fireman. Kelly also testified that he did not see the westbound automobile, but that he did see an eastbound machine which stopped when the engine was about six car lengths from the crossing. He also stated that when he heard the yell 'Hold it', he applied the emergency brake.
Granthan, who occupied a position on the left side of the engine, further testified he first saw the westbound automobile when the engine was about seven car lengths from Oregon Avenue and at that time the automobile was about 300 feet from the tracks travelling about five to six miles per hour.
In addition to these witnesses, the defendant produced a John Kezlaw, the driver of the eastbound automobile to which Kelly, the engineer, referred. This witness testified that he heard the engine's whistle 'a couple of times'; he stopped about thirty feet from the west track, and within a few seconds the accident happened. He did not hear any warning signal of the approaching train other than the whistle, and his attention was drawn by the lights of the Myers' car so that he did not notice whether the engine's headlight was on.
I am of the opinion that the testimony of these men is entitled to full credence, and that it clearly establishes that the engine's headlight was burning bright and its bell was ringing continuously from a point at least 400 feet before the point of the accident, and that the engine's whistle was sounded four times as the train approached the intersection, the first blast being given about 320 feet north of Oregon Avenue, and the last blast being completed as the engine entered the intersection. Although the night was dark, it was clear and dry and there was practically no traffic on the highway. Furthermore, within 150 feet east of the tracks, there was an unobstructed view northward for more than a city block; the engine was travelling at the rate of six miles per hour, and Myers at four to ten miles per hour. Under the circumstances, I am of the opinion that the warnings and signals given by defendant's employees were adequate and timely. I find it difficult to believe the plaintiff's assertion that he stopped, looked and listened before crossing the first track, and looked and listened again before crossing the second or west track. Had he been as observant as he claims, he would undoubtedly have heard or seen the approaching train, for, according to his own story, he was struck when he had proceeded only four feet across the second track: the train must have been practically upon him at the time he claims to have looked and listened.
Considering all the evidence. I am of the opinion that the plaintiff failed to stop, look or listen, and that he failed to heed the warnings given of the approaching train. Under the well-settled law of Pennsylvania such conduct is negligence per se and bars recovery. Baltimore & Ohio R. Co. v. Muldoon, 3 Cir., 1939, 102 F.2d 151, 152. Moreover, I feel that the plaintiff has attempted to alter his version of the accident in order to recover his losses caused by his own negligence.
Accordingly, I state the following conclusions of law:
1. The evidence fails to show any negligence on the part of the defendant, its servants, agents or employees, which caused or contributed to the happening of the accident.
2. The accident occurred solely as a result of the negligence of the plaintiff himself.
3. Under all the evidence the Court finds for the defendant.
An order may be submitted in accordance with this opinion.
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