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January 13, 1954


Appeals, Nos. 175 and 176, March T., 1953, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 2173, in case of Genevieve Costack, Admrx., Estate of Basil B. Marciniak, deceased, v. Pennsylvania Railroad Company. Judgments reversed.


Samuel W. Pringle, with him John David Rhodes and Dalzell, Pringle, Bredin & Martin, for appellant.

James P. McArdle, with him Morris Berg, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 376 Pa. Page 342]


The principal question on this appeal involves the distinction between so-called "negative" and "positive" testimony in regard to the hearing of the warning signals of an approaching railroad train. It is a question which has been the subject of probably more decisions of this court than any other problem in the law of evidence.

[ 376 Pa. Page 343]

Plaintiff's decedent was one of four men who, at about 2:45 a.m. on October 18, 1948, were riding in an automobile in the Borough of Tarentum, Allegheny County. As they proceeded northwardly on Bridge Street over a four-track railroad crossing their car was struck on the furthermost track by a westbound freight train which consisted of some 106 loaded and 6 empty cars propelled by a large three-unit diesel engine. Three of the occupants of the car were killed and the fourth suffered a head injury which resulted in his total loss of memory as to anything connected with the occurrence of the accident. The westbound track was straight for 1400 feet eastwardly from the crossing and the operator of an automobile would have a clear, unobstructed view of the headlight of a locomotive for a still greater distance while approaching the crossing and when passing over the first three tracks; there were no railroad cars on those tracks east of Bridge Street at the time of the accident. The weather was clear and the visibility good. The headlight, located on the front of the engine at a height of about nine feet above the tracks, was burning brightly, and the speed of the train as it approached the crossing was from 30 to 35 miles per hour. The automobile was thrown to the north of the westbound track at a point about 25 feet beyond the crossing; the engine came to a stop about 1500 feet beyond. According to the testimony of the engineman and fireman the engine bell was turned on at a point two miles east of Bridge Street, rang continuously for that entire distance as the train proceeded over four other crossings before reaching Bridge Street, and was not turned off until the train stopped after the accident. The crew further testified that at a point approximately 1800 feet east of Bridge Street the regular road-crossing warning horn was sounded, and that, some 400 or 500 feet before reaching Bridge Street,

[ 376 Pa. Page 344]

    two long blasts and a short blast were given. As a fourth blast was being sounded the engineman and fireman first saw the automobile approaching the crossing from the south as it came into view from behind a house at the Bridge Street corner; thereupon the engineman interrupted the sounding of this last blast and instead gave a series of short blasts of the horn. The automobile however continued to move over the first and onto the second track where it came to a momentary pause but almost immediately proceeded across the third and onto the westbound track when the locomotive was only about 40 feet away, and although the engineman applied the emergency brake the collision was then unavoidable.

Such was the version of the occurrence given by the engineman and fireman. Their testimony as to the warning signals was corroborated by six other witnesses. A brakeman on the train, riding at the rear of the third unit of the diesel, testified that he heard the long and short blasts of the horn. A witness living in a house a short distance west of the crossing testified that he was sitting in his living room at the time and that he heard the regular crossing blast followed by several sharp blasts and then by a "bunching" noise apparently caused by the bumping together of the freight cars when the emergency brakes were applied. Another witness, a woman who happened to be in the bathroom of her home, also slightly west of the crossing, testified that she heard several short blasts of the horn which was "blowing and blowing and blowing... longer than any other time." A grocer living above his store which was practically adjacent to the crossing, testified that he was awakened from sleep by the blowing of the horn and he then heard the crash. A husband and his wife, living right at the crossing, were

[ 376 Pa. Page 345]

    also awakened by the several sharp blasts followed by the crash.

On behalf of plaintiff there was testimony -- contradicted by defendant's witnesses -- that because of the presence of some street lighting there was difficulty in distinguishing the headlight of an approaching engine. But the principal and indeed plaintiff's only witness to the accident was one Kunkel, a young sergeant in the United States Air Force, recently returned on furlough from 18 months in Korea, who happened to be driving his automobile east on Sixth Street, which paralleled the tracks at a distance therefrom of 25 feet; he lived on that street a block or more east of Bridge Street and he was returning home. When he came to Bridge Street, which comes to a dead end at Sixth Street on the north side of the railroad tracks, he stopped, looked to the south, and saw an automobile coming toward the crossing, but since it was far enough away to enable him to proceed safely across Bridge Street he started up and had proceeded some three or four car lengths east of the intersection when he saw the headlight of the approaching train. As the train came toward him, or was in the act of passing him, he became somewhat concerned about the danger of an accident at the crossing and he looked back to determine the position of the automobile he had seen approaching; he did see it but could not remember what position it was then in and whether it was before or after it had been struck by the train. Some of the questions asked him and his replies thereto were as follows: Q. "Did you hear any horn or other signal given by this train as it was 100 feet from you and approaching the Bridge Street crossing and you were three or four car lengths from the Bridge Street crossing?" A. "No, I didn't." Q. "Did you hear any horn being blown as the train passed you or was in the

[ 376 Pa. Page 346]

    act of passing you and reached the intersection of Bridge Street?" A. "No, sir, I didn't hear none." Q. "Would your testimony be the same as to the existence of any bells? Did you hear any bells?" A. "No, I didn't hear any bells." Q. "Did you hear any other warning of the approach of this engine as it came down toward the Bridge Street crossing?" A. "Just the train itself." He said he did not remember whether he heard the train previous to seeing the headlight. He testified that the house where he lived fronted on the railroad, that he was familiar with the sound of the horn on a diesel locomotive and could hear it in his house even with the windows and doors closed. The windows of his automobile were up except that a wing window was open about an inch. He said he could not recall anything that would have prevented his hearing a horn had one been sounded; he had never had any trouble with his hearing and he passed an examination for admission into the United States Air Force only a couple of months after the time of the accident. He testified that at the time of the accident he "wasn't much concerned about anything except driving [his] car... and getting home," and that he wasn't particularly concerned whether or not any train was coming when he stopped his automobile at Bridge Street because he was not intending to cross the tracks himself.

The jury returned a verdict for the plaintiff for $35,043 in the wrongful death action and $16,248 in the survival action. The court directed a remittitur of the portion of the verdict in the wrongful death action in excess of $28,846 and in the survival action in excess of $12,923. The remittitur was filed and judgments entered on the reduced verdicts. From those judgments defendant appeals.

[ 376 Pa. Page 347]

As previously stated there is a veritable multitude of cases in this court dealing with the question whether mere testimony that a plaintiff or his witnesses did not hear a warning signal from an approaching train would entitle the plaintiff to a submission of his case to the jury. They may all, perhaps, be divided into two classes. The one class consists of cases holding that such "negative" testimony, as against the "positive," affirmative testimony of witnesses who did hear a warning signal, is but a scintilla of evidence not sufficient to make out a charge of negligence against the railroad company, which, therefore, is entitled to a directed verdict in its favor.*fn1 In the other class are cases where the negative testimony was by witnesses who, although in such a position that they would have been likely to hear warnings of the approach of a train

[ 376 Pa. Page 348]

    did not hear any; it was held that under such circumstances it was for the jury to pass upon the strength of such testimony even though contradicted by other witnesses, this being especially true if the witnesses were paying particular attention and actually listening for such warnings; such testimony was characterized as being of a higher grade than mere negative testimony.*fn2 The question is not one merely of form of expression -- whether, for example, the witness says

[ 376 Pa. Page 349]

    that "no warning was given" as distinguished from his saying that "he heard no warning"; (Kindt v. Reading Company, 352 Pa. 419, 426, 43 A.2d 145, 149). Rather it is whether he had acuteness of hearing, sufficient opportunity for hearing, and occasion for listening, and whether all the other circumstances tended to show that if a warning signal had been given he would probably have heard it, and therefore, not having heard it, he could fairly assert that no warning was given. Such are the factors which must be considered in determining whether or not so-called "negative" testimony amounts to more than a mere scintilla of evidence and therefore entitles submission of the plaintiff's case to the jury. As stated in Kindt v. Reading Company, 35i Pa. 419, 428, 43 A.2d 145, 149: "When witnesses testify that no whistle was blown or bell rung, all the circumstances which surrounded the witnesses at the time and something as to the perceptive faculties of the witnesses should be brought out either on direct or on cross-examination, and the jury should decide whether or not their testimony is of a positive and convincing character."

Measured by these considerations it is reasonably clear that the testimony of Sergeant Kunkel was of a sufficiently high grade of evidential value to prevent the entry of a judgment for defendant n.o.v. Kunkel lived alongside the railroad, was familiar with the warning signals of diesel locomotives, which, as all the witnesses agreed, are particularly loud and distinctive, and he was right at the crossing as the train approached. It is true that he did not claim to have been consciously listening for a signal, but it would seem almost incredible, in view of the position where he was, that he should not have heard the ringing of the engine bell and the continued and repeated blasts of the horn if those warnings were given. His truthfulness

[ 376 Pa. Page 350]

    and his perceptive faculties were for the consideration of the jury.

A different question presents itself in regard to defendant's motion for a new trial. While the testimony of Kunkel could not have been withdrawn from the jury there was opposed to it not only the extremely detailed testimony of the engineman and fireman as to the warning signals given, but that of six other witnesses, five of them wholly disinterested, including two who happened to be awake and heard the signals and the succeeding crash, and three who were actually awakened from their sleep by the repeated blasts of the horn. The verdict, therefore, was clearly against the weight of the evidence and the judicial remedy in such event is the granting of a new trial: MacDonald, Admrx, v. Pennsylvania R.R. Co., 348 Pa. 558, 567, 36 A.2d 492, 497; Kindt v. Reading Company, 352 Pa. 419, 429, 43 A.2d 145, 150. Moreover, it was especially important under the circumstances of the trial judge to charge the jury that, while the number of witnesses on either side was not controlling, it was a weighty factor which, together with the question of the interest or disinterestedness of the respective witnesses, should be given by them proper consideration: Patterson v. Pittsburgh Rwys. Co., 322 Pa. 125, 185 A. 283. The court should also have explained to the jury the relative value, from a qualitative standpoint, of the kind of "negative" testimony given by Kunkel and the "positive" or affirmative testimony of the defendant's witnesses as to the ringing of the bell and sounding of the horn, and should have called their attention to the ordinary superiority of the latter type of evidence: Urias v. Pennsylvania R.R. Co., 152 Pa. 326, 328, 25 A. 566, 567; Hess v. Williamsport & North Branch R.R. Co., 181 Pa. 492, 496, 37 A. 568. The learned trial judge, while accurately recapitulating all of the testimony,

[ 376 Pa. Page 351]

    did not sufficiently instruct the jury to take these matters properly into account.

As the case goes back for a retrial it is not necessary to discuss questions raised by defendant as to the adequacy of the evidence in regard to the proof of damages, nor its contention ...

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