Appeals, Nos. 168 and 169, March T., 1953, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 2751 and April T., 1949, No. 3112, in cases of Great Lakes Forwarding Corporation v. The Pennsylvania Railroad Company and Delbert H. Meade v. Same. Judgments affirmed.
John E. Evans, Jr., with him Evans, Ivory & Evans, for appellants.
Bruce R. Martin, with him Dalzell, Pringle, Bredin & Martin, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Two actions in trespass were brought against the Pennsylvania Railroad Company by Delbert H. Meade and the Great Lakes Forwarding Corporation to recover damages for personal injuries and property damage resulting from a grade crossing collision. The cases were consolidated for trial and the jury returned verdicts in favor of the plaintiffs. The court granted the defendant's motions for judgment non obstante veredicto in each case. Plaintiffs appealed.
The appellants' claims are based on alleged insufficient and untimely warning of the train's approach to the crossing. In granting the defendant's motions for judgment non obstante veredicto the court below held there was no affirmative evidence of negligence, direct or inferential, on the part of the defendant.
The plaintiff Meade and Herbert M. Ross, employes of the Great Lakes Forwarding Corporation, were each operating an empty tractor caravan trailer, a type used for transporting new automobiles. Both tractor-trailers were forty-five feet long. On the morning of
June 1, 1948 they were engaged in driving the empty tractor-trailers from Philadelphia to Toledo, Ohio, having delivered their cargoes of motor vehicles. They were traveling west on route 220, intending to make a right turn in the road in the Borough of Tyrone. Plaintiff Meade was in the lead with Ross following in his machine. Meade missed the turn, Ross overtook Meade and assumed the lead. It was 3:30 in the morning and the weather foggy. They approached the grade railroad crossing, the main line of defendant railroad, consisting of five tracks running east and west, over which were operated many express passenger trains at high speed and numerous freight trains. Their intention was to cross the railroad, and come upon route 220 which they had missed in Tyrone. The road which they were on ran across the tracks and led from Tyrone to Thomastown, about one mile south of the crossing. It was of macadam construction and twenty-five to thirty feet wide north of the crossing. For a distance the road ran parallel to the tracks and then took an abrupt right angle turn to the left across the tracks and the station platform which was situated between the third and fourth sets of tracks. A light was located on the middle of the platform above and beside the roadway. After crossing the tracks and the station platform the road turned again to the right at a right angle. There was also another road to the left at right angles to the track. A bank bounded by a retaining wall was directly in front of traffic as it proceeded across the tracks. The road to the right was not more than twelve to fifteen feet wide; that to the left was eight feet wide. Thus in crossing the tracks the only alternatives were to go right or left on these narrow roads. Ross, who so preceded Meade in his tractor-trailer, made the turn across the tracks and upon reaching the other side found that he would be
unable to negotiate the turns either to the right or left. He shifted out of gear, set the emergency brake, and opened the door to alight from the cab to inform Meade of the situation. He noticed at this time that the warning lights were blinking and the crossing bell was ringing signaling the approach of a train. Ross then closed the door, put the tractor in gear, released the emergency brake and drove forward a few feet at a speed of three miles an hour. He went as far as possible and then turned the tractor up the road to the left. This maneuver removed this trailer from the fourth track over which the train was approaching. When Ross had gone as far as he was able and was abut to jump from the tractor, through his right rear view mirror he observed Meade drive up on the right side of his trailer, hit the wall and endeavor to cause the tractor to climb the bank. As Meade was attempting thus to climb the bank the train struck the rear of his trailer, threw it into the tractor-trailer Ross was driving and dragged Meade's tractor-trailer down the track approximately one hundred and twenty-five feet with Meade in its cab.
Meade testified that he had lost sight of Ross in the fog and that before committing his truck to the tracks he brought his tractor-trailer to a stop and looked and listened. He then proceeded across the tracks after noticing that there were no signals in operation. He testified that the light on the platform in the middle of the tracks caused him to believe this was the end of the crossing since it was as far ahead as he could see. When he reached the light he realized that there were two additional sets of tracks. As he passed under the platform light he became aware that the flashing lights were in operation. It was then he noticed Ross's trailer to his left on the tracks. He also testified that he then went forward in first gear as
quickly as possible, hit the wall, tried to climb the bank, but was stuck by the oncoming train. The record discloses that there were several warning signs along the street on the north side of the tracks which informed users that the street was not a through highway and that there was a dead end near. The drivers testified that the signs were not visible due to the foggy weather.
The liability of the defendant railroad under the factual situation here presented, the appellants contend, should be predicated upon a violation of the duty to give the traveling public sufficient and adequate notice of the approach of the train.
On an appeal from a judgment non obstante veredicto in favor of the defendant, it is axiomatic that we must view the facts and the inferences deducible therefrom in the light most favorable to the plaintiff. Meade testified that he did not see the crossing lights flash and did not hear the bells ring until he got to the fourth track. He heard the train whistle and saw its headlight after he had gone about another ten feet. The span of time when the first signal was seen until the collision was about three to six seconds. This Court said in Anstine v. Pennsylvania Railroad Company, 342 Pa. 423, 428, 20 A.2d 774: "As to what constitutes adequate warning of the approach of a train to a public crossing, we said, in Bickel v. Pennsylvania R. R. Co., 217 Pa. 456, 460: "... it was the duty of the defendant's employees in charge of the train to have given timely and sufficient warning of its approach to the crossing in view of the circumstances of the case, such as the character of the crossing, the ability of travelers to see an approaching train, the rate of speed of the train, etc.... While the law does not point out any particular mode or manner in which notice of trains approaching a crossing shall be given, it does require
that some suitable and adequate means, adapted to the circumstances, shall be adopted and applied.'
"It is true that decisions involving the adequacy of the signal of the railroad generally turn on whether the warning was given soon enough in view of the rapid movement of the train (see, for example, Childs v. Pennsylvania R. R. Co., 150 Pa. 73; Cummings v. Pennsylvania Railroad, 304 Pa. 219), but, by the same token, the adequacy of the signal may just as well depend upon whether it was given too soon, in view of the retarded rate of speed of the train. in either event, the question is whether the warning is timely in view of all the circumstances...." In view of the testimony of lack of timely warning, which we are required to accept on application non obstante veredicto, it cannot be held, as matter of law, that the defendant gave adequate notice of the train's approach.
Meade placed himself and his tractor-trailer in this dangerous position, however, as a result of his failure to use due care under the circumstances. Contributory negligence is declared as matter of law where it is clearly revealed that fair and reasonable individuals could not disagree as to its existence: Van Note v. Philadelphia Transportation Company, 353 Pa. 277, 45 A.2d 71; Callahan v. A. Wishart & Sons Company, 365 Pa. 498, 76 A.2d 386. Photographs introduced in evidence show that on the road running parallel north of the tracks and before reaching the crossing there were six warning road signs in addition to the regular railroad crossing signs. One sign located on the side of the station read "Caution Not A Thru Highway". This sign was lighted with an electric light. Below this sign was a reflector sign which read "Stop. Dead End". Farther down the road was another reflector sign also reading "Stop. Dead End". On farther was another sign "Caution Not A Thru
Highway". Then directly in front of traffic before it turned left over the tracks was a large sign four feet by five feet with black diagonal marks on a yellow background which read "Sharp Curve Over Railroad Tracks". To the left of this large sign was another "Stop. Dead End" sign.
For plaintiff to have passed six warning signs when driving such a lengthy vehicle without investigation, clearly constitutes contributory negligence. It is ture plaintiff's evidence shows the weather was foggy. But under such conditions a driver should have been more alert. this is more apparent where plaintiff was operating an unusually large vehicle of forty-five feet in length. The driver of a motor vehicle whose vision is obscured by atmospheric conditions, such as fog, snow or heavy rain, must exercise care commensurate with the situation. Justice WALLING said in Serfas v. Lehigh & New England Railroad Co., 270 Pa. 306, 308, 113 A. 370: "... Should we hold that the traveler need not stop to look and listen because of darkness, then we should logically extend the same immunity in case of a fog or snow storm, or when the crossing was dimmed by dust or otherwise, even in the daytime. To so hold would suspend the rule when needed most, and ...