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MARINO v. PENNSYLVANIA RAILROAD COMPANY (01/17/56)

January 17, 1956

MARINO
v.
PENNSYLVANIA RAILROAD COMPANY, APPELLANT.



Appeal, No. 159, April T., 1955, from judgment of County Court of Allegheny County, 1953, No. 2308, in case of Robert P. Marino v. The Pennsylvania Railroad Company. Judgment affirmed.

COUNSEL

Thomas D. Thomson, with him Dalzell, Pringle, Bredin & Martin, for appellant.

Herbert B. Lebovitz, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ross

[ 180 Pa. Super. Page 180]

OPINION BY ROSS, J.

This is a trespass action involving a grade crossing collision between plaintiff's automobile and defendant's freight train. After a jury verdict for the plaintiff for damages to his automobile, the defendant's motion for judgment n.o.v. was refused and it took this appeal. The only question involved is whether the negligence of the defendant was shown.

At 9 o'clock on the night of November 11, 1950, a clear moonlight night, the plaintiff and his wife started across the Morgan Street railroad crossing in Brackenridge, Pennsylvania. The road was clear and visibility very good. Through no fault of plaintiff's his car stalled on the tracks of the defendant, and for several minutes, he attempted, unsuccessfully, to start the motor. The crossing signal lights began blinking, indicating the approach of a train, so plaintiff's wife left the car and proceeded up the track, wearing white gloves and a white headdress, and began flagging down the train. Plaintiff left the vehicle soon after and followed her up the track for a distance of about forty feet and he began signaling also. He saw the train when it was about 2000 feet away from the crossing and at that time it was proceeding at about 35 to 40 miles an hour. When the distance narrowed to 1500 feet, the train slowed to about 20 miles an hour speed

[ 180 Pa. Super. Page 181]

    and when it was about 40 feet from the crossing the plaintiff heard a "grinding noise" of the wheels. The train proceeded, however, struck and damaged plaintiff's car, and came to a final halt 400 feet beyond the crossing. The engine's headlight was lit as were the lights on plaintiff's car and the track for approximately 900 feet is practically straight as it approaches the crossing.

The plaintiff was obliged to provide the jury with sufficient evidence to conclude that the defendant's engineer saw, or by due diligence should have seen, his vehicle stalled upon the track while the train was of sufficient distance away from the crossing that it could have been stopped before reaching the point of collision. Tallman v. Reading R. Co., 117 Pa. Superior Ct. 148, 177 A. 228. Examined against this standard, the evidence, viewed in a light most favorable to plaintiff, giving him the benefit of every reasonable inference (Stoner v. Penn-Brixite, Inc., 177 Pa. Superior Ct. 189, 110 A.2d 904), indicates ample factual basis for the jury's conclusion of negligence on the part of the defendant. The crossing is located in a populated area, and is approached by the train from around a curve which straightens out about 900 feet distant. It is visible to the engineer for at least this distance and probably slightly more as the engine rounds the bend. Whether it was because he saw the stalled car or from his ordinary caution as he approached the crossing, the engineer slackened from a speed of 40 miles an hour to 20 miles an hour when still 1500 feet away. He proceeded at this rate of speed until within 40 feet of the crossing when the plaintiff heard the "grinding noise" of the wheels. The jury could well infer that this was the application of the full brakes too late, of course to prevent the collision, but sufficient to stop within 440 feet, and that the train could have been stopped

[ 180 Pa. Super. Page 182]

    before reaching the crossing by application of the brakes 1500 feet away or at latest, 900 feet away when the engine entered the straight approach to the crossing ...


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