Appeal, No. 245, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, April T., 1950, No. 3091, in case of Mike Jursic v. The Pittsburgh & Lake Erie Railroad Company. Judgment affirmed.
Theodore M. Tracy, with him H. Y. Crossland and Evans, Ivory & Evans, for appellant.
Chauncey Pruger, with him Reed, Smith, Shaw & McClay, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This case arose out of a railroad crossing accident. Plaintiff sued to recover for personal injuries sustained and damage to his Dodge pick-up truck when it was struck by a freight train on the eastbound main line track of the defendant, Pittsburgh & Lake Erie Railroad Company, at the Sheridan Street grade crossing in the City of McKeesport. A jury returned a verdict for the plaintiff in the sum of $5,000. The defendant filed motions for new trial and for judgment non obstante veredicto. While expressing the opinion that it considered the verdict excessive, the lower court refused the motion for new trial because of its grant of the motion for judgment n.o.v. This appeal is from the judgment accordingly entered for the defendant.
The defendant railroad company maintains two sets of tracks which run east and west and cross Sheridan Street which runs north and south. North of the defendant's tracks but separated by a paved area about 30 feet wide, very much like a street, are three tracks of the Baltimore & Ohio Railroad Company which also run east and west and cross Sheridan Street. The latter are protected by wooden warning gates which were open or up at the time of the accident. At about 6:12 in the morning of February 8, 1950 plaintiff was driving his truck southwardly on
Sheridan Street toward the National Tube Mill, located south of defendant's tracks, where he was employed as a laborer. It was dark. Plaintiff testified that he intended to park his car in an adjacent area (also described as a street) between the defendant's tracks and the mill; that he stopped, looked and listened before crossing the Baltimore & Ohio tracks and that after crossing the paved area between the Baltimore & Ohio and defendant's tracks, again stopped, looked and listened before crossing the defendant's tracks; that he did not then see or hear anything; that he proceeded over the crossing slowly, about the speed that a man would walk; that when the front wheels of his truck had passed the last rail of defendant's second or eastbound track, he was struck by the eastbound train; that when his truck had entered upon the second track the cab of the truck suddenly became illuminated, that he then looked to his right and saw the approaching train 30 feet away. Plaintiff's case as to liability, that is as to the happening of the accident, consisted solely of his own testimony.
The day after the accident the plaintiff was interviewed at his home by a representative of the defendant and signed a statement, witnessed and first read to him by his adult daughter in which he admitted that he did not stop or look because the gates on the Baltimore & Ohio Railroad were in the upright position and he thought it was safe to cross over all the tracks. Plaintiff's daughter, who was present when the statement was given and who read it to her father before he signed it, was not called as a witness to refute its content or to corroborate plaintiff's claim at the trial that he was too sick to properly narrate the happening.
The defendant called the engineer, fireman and trainman of the train. The brakeman was dead and the
conductor ill at the time of the trial. The testimony of the three members of the train crew who testified, which was not shaken on cross-examination, was that the train, which consisted of the locomotive and tender and 35 or 36 freight cars, left McKees Rocks at about 4:30 A.M. en route eastward to Newell about 35 miles away, beyond the scene of the accident; that the headlight of the train was on from the time it left McKees Rocks until its arrival at Newell; that at least four blasts of the whistle were blown at the Center Street crossing which is about 50 car lengths west of the Sheridan Street crossing, that the engine bell was ringing automatically all the way to Sheridan Street and was turned off only after the accident occurred. It is not disputed that the train was traveling about 10 or 12 miles per hour, that the tracks are straight for a considerable distance on either side of the Sheridan Street crossing, that the view from the crossing westwardly, the direction from which the train was approaching, was about 1400 feet with no obstructions, and that the train stopped with the tank or tender of the engine upon the crossing. The engineer testified that he was on the right of the engine and therefore could not see the approaching truck, that he made an emergency stop when he was about 50 feet from the crossing because the fireman who was on the left of the engine told him to "dynamite her". The fireman testified that he "hollered" this to the engineer when he saw that the plaintiff was not stopping but proceeding across the paved area and onto the defendant's tracks.
In entering judgment n.o.v. for the defendant, the lower court held that plaintiff had not established negligence on the part of the defendant and also that plaintiff was guilty or contributory negligence. As to the defendant's negligence, plaintiff contends that the
lower court erred in holding that plaintiff's testimony was negative and overcome by the positive testimony of defendant's witnesses, pointing to decisions of this Court holding that the rule relied upon by the court below does not apply where the negative testimony is that of a witness who for some reason had occasion to attune his faculties to the situation, that here plaintiff's knowledge of the crossing that he was about to traverse furnished a reason for looking and listening for approaching trains, and therefore his testimony that he did not see and did not hear can not be rejected under the negative testimony rule. On the other hand, defendant contends that, assuming there was a reason for plaintiff being attentive, under all the circumstances and plaintiff's own testimony he did not in fact alert his senses to the situation. We find it unnecessary to consider and discuss the issue of negligence thus raised for we are of the opinion that the lower court's action in entering judgment n.o.v. was fully justified on the ground of plaintiff's contributory negligence.
In reaching this conclusion we have reviewed the testimony and treated all facts and reasonable inferences deducible therefrom in the light most favorable to the plaintiff. For this reason we reject from our consideration all evidence relating to the statement made by the plaintiff at his home on the day following the accident. While plaintiff's denial of the truth of its content was far from persuasive, we will treat it as sufficiently denied and consider the plaintiff's account of the happening of the accident as testified to by him at the trial. We first observe that he stated that he was familiar with the crossing, having used it ...