The opinion of the court was delivered by: WATSON
The plaintiff, Edward Eggenberger, instituted this action to recover damages sustained as the result of an accident, which, it is alleged, was caused by the negligence of the Erie Railroad Company and its servants, agents, and employees. On May 5, 1952, plaintiff's automobile and defendant's train were involved in a grade crossing collision near the Village of Rowland, Pike County, Pennsylvania.
The plaintiff contends that the collision was caused by the negligence of the defendant in the following particulars:
(a) Driving and operating the locomotive and train of cars over the grade crossing at a high and dangerous rate of speed;
(b) Failing to check and reduce the rate of speed of the locomotive and train of cars as it approached the grade crossing, in time to avoid the collision;
(c) Failing to erect gates or electric signals, or to station a flagman at the grade crossing to warn travelers using the public highway of the approach of the locomotive and train of cars;
(d) Failing to give plaintiff any proper, adequate, timely or sufficient warning of the approach of the locomotive and train of cars, by the ringing of a bell, blowing of a whistle or otherwise;
(e) Operating the locomotive and train of cars attached thereto at a reckless and dangerous rate of speed at a place where sufficient care should have been exercised by the defendant;
(f) That at the time of the accident and for a long time prior thereto, the situation and surroundings of the defendant's railroad tracks, maintained by it, and under its control and operation at the crossing, on the easterly side thereof, were so as to obstruct the view of approaching trains on the east; and that by reason of obstructions caused by trees and vegetation located immediately adjacent and adjoining the said tracks so being used, maintained and operated by the defendant at the crossing, the view to the east was almost completely obstructed, so that travelers proceeding to cross the tracks in a northerly direction had practically no view to the east of approaching trains, until the right of way and tracks of the defendant were reached by such travelers;
(g) That the plaintiff did not see and could not have seen such approaching train in time to avoid the collision, although he looked and listened and exercised due care;
(h) Failing to regard the rights and safety of the plaintiff.
The action was tried before the Court without a jury.
On the basis of the legal evidence received at the trial the Court makes findings of fact and conclusions of law:
1. The plaintiff is Edward Eggenberger, a citizen of Pennsylvania, who resides in Greeley, Pike County, Pennsylvania.
2. The defendant is the Erie Railroad Company, a New York corporation, which is engaged as a common carrier in the operation of a single track surface railroad running from Hawley, Wayne County, Pennsylvania, to ...