Appeal, No. 127, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, July T., 1951, No. 2031, in case of A. W. Grotefend, et ux. v. Pennsylvania Railroad Company, W. I. Worsham & Bros., and Lester Marlow, Jr. Judgment against defendant railroad reversed.
Bruce R. Martin, with him Dalzell, Pringle, Bredin & Martin, for appellant.
Wallace E. Edgecombe and Kenneth P. Christman, for appellees.
Before Stearne, Jones, Chidsey, Musmann and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In this action of trespass the jury rendered a verdict for plaintiffs against all defendants for damages to their automobile, and defendant-railroad appeals from the refusal of its motion for judgment n.o.v. The other defendants have not appealed. W. I. Worsham & Bros. were the owners, and Marlow the driver, of the tractor-trailer involved.
It is recognized by all parties that plaintiffs are without fault, but the railroad contends that there was no proof of negligence making it responsible in damages.
The accident happened at the Ferry Street crossing of defendant-railroad in East Deer Township. Ferry Street, which carries heavy vehicular traffic, runs north and south and is crossed by the tracks of defendant railroad which run east and west. There had been a heavy snowfall which ended on the morning of the day the accident occurred. As a result, the snow was well packed, the roads icy, and driving hazardous.
At about 5:00 P.M. the plaintiffs' car was legally parked in a parking lot near the crossing. Marlow drove his empty tractor-trailer onto the crossing, and as he did so his wheels became stuck on the rails. Despite his efforts the wheels continued to spin without moving the vehicle forward or backward. Defendant's train, travelling from west to east, struck the tractor and hurled it into plaintiffs' automobile.
Plaintiffs' testimony was that the tractor-trailer had been stuck on the rails some three to five minutes prior to the approach of the train; that from a point on the crossing, but not where the truck was stopped, the view in the direction of the train was clear for approximately one-half mile. But their evidence further showed that between the crossing and the train there was a bend in the tracks and that a number of railroad care were stopped on a siding which parallels the main track. The witnesses also stated that, standing east of the crossing, these would obscure the view to the west. One witness stated that he had not stood in the eastbound track and looked west; and the other stated that from the north rail of the track he would not see the train because of the bend and the cars on the siding. It was not established that the crew had the view claimed or that they could have stopped soon enough to avoid the accident. Nor was it shown that the train crew knew or should have known that the tractor was on the tracks, in sufficient time to have stopped before striking it. Neither was there any proof that no audible warning of the train's approach was given, although there was proof that the "flasher signals" were flashing and gave notice of its approach. None of the witnesses testified that they would have heard a whistle if it had been blown. The proof falls far short of proving negligent operation of the train. The following from Guyler v. Lehigh Valley Railroad Company, 165 Pa. Superior Ct. 196, 198, 67 A.2d 575, is applicable here: "This was not a case of an engineman having knowledge, - and sufficient time to act upon it, - that a vehicle had stopped or stalled upon a crossing which he was approaching." Here there is no such proof, - nothing to show that the crew should have seen the tractor-trailer at the point where it stopped.
Plaintiffs also contend that there was sufficient evidence of negligence in maintaining the crossing to sustain the verdict against the railroad. Their claim is that it was permitted to get into and remain in a state of disrepair, so that the resulting "holes" caused the tractor-trailer to get stuck. But, in this they also failed to sustain their burden. Their testimony established that despite the heavy snow and ice, the hazardous driving conditions, and the fact that one of the rear tires was smooth (which, if it spun would prevent the vehicle from moving), the tractor-trailer was not equipped with chains or any device to combat such conditions. They further established that the "ruts" were formed by the clear rails and the snow packing on the remaining portion of the crossing. There was no proof that the crossing was then in disrepair, although it was shown that there had been some complaints about its condition. Nor was it established that any defect resulting from disrepair caused the vehicle to be stuck on the crossing. On the contrary, the testimony was definite that the snow, rather than any defect in the crossing, caused the wheels to spin. Nor was there any evidence that the snow or ice should or could have been removed. In addition, the driver of the tractor-trailer testified that all of the road, including the crossing, was "icy."
The only conclusion must be that the accident was caused solely and directly by the negligence of the driver of the tractor-trailer, and that the icy condition of the rails was merely part of the general condition resulting from the heavy fall of snow, and not negligence in the railroad. Cf. Hoffman v. Philadelphia Transportation Company, 369 Pa. 212, 85 A.2d 144; Low v. Harrisburg Railways Co., 290 Pa. 365, 138 A. 852.
Plaintiffs point out that a track foreman testified that he had put a hole in a plank of the crossing some time prior to the accident, but it was not shown that this hole had anything to do with the tractor-trailer's being stuck. There being no proof of ...