Appeal, No. 14, March T., 1953, from judgment of Court of Common Pleas of Butler County, Sept. T., 1952, No. 15, in case of H. R. Hogg, Admr., Estate of Harold W. Hogg, deceased v. Bessemer & Lake Erie Railroad Company. Judgment affirmed.
Lee C. McCandless, for appellant.
Archie C. Voorhies, with him John L. Wilson and Whiteman, Voorhies, Dilley & Keck, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, H. R. Hogg, as administrator of the
estate of his son, Harold W. Hogg, deceased, brought this action of trespass against Bessemer & Lake Erie Railroad Company under the Survival and Wrongful Death Statutes to recover damages arising out of fatal injuries sustained by plaintiff's decedent when the motorcycle he was operating at night ran into defendant's moving freight train at a rural railroad crossing. The jury rendered verdicts in favor of the plaintiff and made specific findings (1) that the railroad crossing described in this case was peculiar, unusual, hazardous and very dangerous at the time of the accident and (2) that the defendant railroad was guilty of wanton misconduct. The defendant moved for judgment non obstante veredicto. The court below granted defendant's motion. From the judgment for the defendant accordingly entered, plaintiff appeals.
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 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
life and having driven over the crossing frequently on his motorcycle, both in the daytime and at night.
The railroad tracks were straight for about 500 feet south and one-half mile north of the crossing which was 47 1/2 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 crossbuck 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 to 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
the [decedent's] motor cycle did not disclose the track was occupied until the motor cycle was within twenty-five feet of the moving train...". Plaintiff adduced testimony that in prior years two motor vehicles collided with the sides of trains moving over this crossing at night. In both instances, however, the operators, who testified at the present trial, admitted they had not stopped before entering upon the crossing.
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*fn1 with him was "scared", he pulled his car off the road to the left, turned it around and parked in an area north of the highway and west of the railroad tracks. After thus parking, he said he observed the light of the approaching motorcycle when it was about 425 feet west of the railroad crossing and that the engine of the train had then passed the crossing, proceeding northward on the second track. He said, "... the next thing that happened, I heard the squeal of the brakes. And the planks rattling.". Upon looking up he saw the motorcycle run into the middle of the train, half of which he said had passed to the
north of the crossing; that when he first saw the motorcycle it was crossing the first (southbound) track; that he saw the handle bars of the motorcycle turn toward the north and that the motorcycle collided sidewise with the train; that "... when he [the decedent] put on the brakes it slid into the train."; that shortly after the accident he saw a single tire mark about a foot in length on the plank crossing where the motorcycle slid between the first and second tracks; that he did not see any tire mark on the first track or west of it on the approach to the crossing.*fn2
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 toward
the crossing at the time of the accident, and after the train passed by, discovered what had happened and stayed with the injured young man while the witness Grossman went for his parents. Gould testified that it was a clear night and the road was dry; that he did not see the engine on the train but the headlights of his car ...