Appeals, Nos. 104 and 105, Jan. T., 1949, from judgment of Court of Common Pleas No. 7 of Philadelphia County, March T., 1947, No. 731, in case of Leno Cella et al. v. Pennsylvania Railroad Company. Judgment affirmed.
Joseph G. Feldman, with him John Swartz, for appellants.
Theodore Voorhees, with him F. Hastings Griffin, Jr. and Barnes, Dechert, Price & Myers, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE PATTERSON
Leno Cella and Guiseppe Ambrosi instituted this trespass action as co-plaintiffs*fn1 for damages allegedly sustained when a pick-up truck owned and operated by Cella, in which Ambrosi was riding as a passenger, was driven into a freight car standing on the tracks of the Pennsylvania Railroad Company, appellee, laid in the bed of Delaware Avenue, in the City of Philadelphia. Ambrosi claimed damages for personal injuries and Cella sought to recover for damages to the truck and for personal injuries, alleging that the Railroad Company was negligent "in that there was no person or persons controlling said car at the time" and "in that said cars had no lights upon them." At the close of the evidence on liability, the trial judge entered a compulsory non-suit as to both Cella and Ambrosi on the ground that there was no proof of negligence. The court en banc refused to remove the non-suit and these appeals followed.
The accident occurred at about 9:00 P.M. on November 11, 1946. Appellants, in Cella's truck, were proceeding southward on Delaware Avenue, in the railroad tracks of appellee, traveling 75 to 100 feet behind a
tractor-trailer unit, at a speed of 18 to 20 miles per hour. Near the intersection of Delaware Avenue and Poplar Street the tractor-trailer unit swerved to the right, apparently to avoid collision with appellee's freight car standing on its tracks a distance of 60 to 75 feet away. The truck, however, continued in the tracks and was driven into the end of the freight car, resulting in damage to the truck and injury to its occupants. Cella did not see the freight car standing on the tracks ahead of him until he was only 10 feet from it, and he then tried to put on the brakes, but it was too late to avoid the collision. From the moment the tractor-trailer swerved to the right until he saw the freight car only 10 feet away, Cella was, according to his testimony, blinded by the lights of an automobile that was proceeding along Delaware Avenue in the opposite direction. He did not notice the street lights along Delaware Avenue and did not remember whether they were lighted. Ambrosi testified that he could not see the street lights because it was raining at the time.
In Wink v. Western Md. Rwy. Co., 116 Pa. Superior Ct. 374, 176 A. 760, an automobile ran into the 39th and 40th cars of a freight train passing over a railroad crossing on a foggy night. The driver did not see the train until he was within 20 or 30 feet of it, too late to avoid a collision. The jury awarded a verdict for plaintiffs and the trial court entered judgment non obstante veredicto for defendant. On appeal, the Superior Court affirmed, stating (pp. 378, 379): "Warning signs and signals are provided by railroad companies to warn of the approach of a train to a crossing and not that the crossing is already occupied. The cars themselves on the track are sufficient warning to a driver of a car of that fact.... if, as here, the train is actually on the crossing when the driver arrives.... 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." (Italics supplied.) This decision was approved and followed in Everetts v. Penna. R.R. Co., 330 Pa. 321, 198 A. 796, where it was held that although the crossing was dangerous in some respects, since the undisputed evidence proved that it was occupied by the train when the lights of the automobile first brought it into view, there was no evidence of ...