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June 18, 1956

Alfred P. JOHNS, Administrator of the Estate of William A. Johns, Deceased,

The opinion of the court was delivered by: WILLSON

William A. Johns, twenty-six years of age, was killed as the result of a grade crossing accident which occurred September 15, 1952, at about 9:30 A.M. on a clear day. Two civil actions were brought, one by Alfred P. Johns, Administrator of the estate at No. 11322 under the Survival Act, 12 P.S. § 1601 et seq., and the other by Mary U. Johns, the widow, at No. 11323 under the Wrongful Death Act, 20 P.S. § 320.601 et seq., of Pennsylvania. The accident occurred at what is known as the Woodall Crossing, Washington County, Western District of Pennsylvania. The cases are here under the diversity jurisdiction of the court, as the defendant, The Baltimore & Ohio Railroad Company, is a Maryland corporation and plaintiffs are and decedent was a resident of Pennsylvania. The law of Pennsylvania applies.

The cases being tried to a jury, a verdict under the Survival Act was for the administrator of the estate of William A. Johns in the sum of $ 10,000 and for the widow under the Wrongful Death Act in the sum of $ 60,000. Judgments were entered accordingly. Defendant moved for dismissal at the close of the plaintiffs' evidence and also for a directed verdict at the close of all the evidence. The cases are now before the court on defendant's motion under Rule 50, 28 U.S.C., for judgment notwithstanding the verdict and in the alternative for a new trial. Defendant urges that the evidence fails to show negligence on the part of the defendant and that in any event the evidence shows contributory negligence on the part of the decedent Johns.

 Defendant's Motion For Judgment N.O.V.

 In considering this motion, the court is mindful that the verdict of the jury was for the plaintiffs and in considering this motion the evidence must, therefore, be considered in the light most favorable to the plaintiffs. The problem is whether under all the evidence and the reasonable inferences to be drawn therefrom, considered in the light most favorable to the plaintiffs, a right to recover exists. Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F.2d 498; Downey v. Union Paving Co., 3 Cir., 184 F.2d 481.

 Also, the jury having found the issues in favor of the plaintiffs, the court must take the view of the evidence most favorable to the plaintiffs and the court must assume that the jury found in plaintiffs' favor all facts which the evidence tended to prove. Meyonberg v. Pennsylvania R. Co., 3 Cir., 165 F.2d 50, and Williams v. Reading Co., 3 Cir., 175 F.2d 32.

 The court is not free to reweigh the evidence or set aside the verdict because the jury might have drawn different inferences or conclusions or the court might have thought another result more reasonable, but must take the view of the evidence most favorable to the plaintiffs. Magee v. General Motors Corp., D.C., 117 F.Supp. 101, and the same case at 3 Cir., 213 F.2d 899.

 Considered under the foregoing principles, the evidence may be summarized as follows: the weather was clear and visibility good. Johns was driving alone in his own car in a northerly direction on Woodall Road. From the City of Washington, Pennsylvania, defendant's single track runs generally westerly. A steam locomotive pulling seven cars had left the tower west of the Washington station, a distance of a mile and three-quarters from the crossing, at 9:27 A.M. The area of the crossing is in hilly terrain. The highway is a secondary road. As one proceeds northerly along it, the view to the right, that is easterly along the tracks, is restricted. A bank up to ten feet high blocks the view and on the morning in question the vegetation on this bank in the form of weeds and shrubs and other growth was six feet in height from the ground, further blocking the view. Easterly from the middle of the crossing, between the rails, according to Hugh H. Streator, a civil engineer, the view was 529 feet to a point where the tracks curve and disappear from view. From a point 6 7/10 feet south of the south rail on the highway the view was 425 feet, but with weeds six feet tall the view was reduced to 389 feet. He further stated that from 11 7/10 feet south of the rail, the view of the tracks ended at 451 feet, but that he estimated with weeds six feet tall the view was but 259 feet. From a point 16 7/10 feet south of the rail, the view was 376 feet, but with weeds six feet tall the view was but 129 feet.

 There was one eye-witness to the fatal collision. As Johns drove his car toward the crossing he was followed by the witness Valentino, who was driving his own automobile a short distance behind the Johns car. Valentino testified that decedent stopped his car five or six feet south of the south rail and the witness stopped his car about eighteen feet behind decedent's car. The witness said he was listening but heard no whistle or bell, nor any sound of an approaching train, even though the left front window of his car was open. The witness said that he could see the decedent and that the decedent turned his head first to the left, that is westerly, and then to the right, that is easterly and toward the direction from which the train came. The witness stated that the Johns car remained stationary for several seconds and then moved on to the center of the tracks when it again stopped and remained stopped until defendant's locomotive struck the car and carried it westward along the track. This witness stated that as one proceeds northerly on Woodall Road toward the crossing the view to the east along defendant's track is obstructed by a bank. He said that weeds growing on this bank on the day of the accident were up to six feet in height, further obstructing the view. Valentino said that on account of the weeds decedent's view eastward along the track was limited to 300 to 350 feet.

 Plaintiffs produced eight witnesses who testified that they were in a position to hear a whistle or a bell and would have heard the whistle or bell if one had been blown or rung, but that no whistle or warning signal was given by defendant's train crew.

 The witness Grace Jones, who lived near the crossing, stated that the weeds on the south bank were higher than her head and that she was five feet six inches tall. Her husband, Roy F. Jones, testified that following the accident the flasher-lights were turned away from the highway, cardboard was put in the reflectors and that the high weeds were cut. This testimony was corroborated by the witness Alice Fisher.

 The witness Valentino testified that the train struck the car while going approximately sixty miles per hour. The speed tape on the locomotive was introduced as evidence for plaintiff, and it indicated that the train approached the crossing at approximately seventy miles per hour. Defendant's witnesses were permitted, however, to explain to the jury that the tape on the locomotive was not the one which ordinarily was used on a locomotive of the type pulling the train in question. Defendant's explanation was that two types of tapes were used, one for high speed locomotives, and one for locomotives with maximum speeds of fifty miles per hour. The tape in question was the high speed tape used in a slow tape recorder, therefore the speed shown was incorrect, according to defendant, as showing from twenty to thirty miles too high a speed. The evidence, did, however, show that the locomotive carried decedent's car from 800 to 1000 feet down the track after the collision.

 Members of the train crew testified that the whistle was blown commencing at the whistle post, 800 feet east of the crossing, and that the whistle was blown until the locomotive was twelve feet from the crossing. The engineer himself did not see the car. The Johns car was approaching the crossing on the fireman's side. The fireman's testimony was that on approaching the crossing he was looking ahead toward the roadway and the car flashed in view, 'and the distance that I estimated him to be from the railroad crossing and us to be from the road crossing would be about equal or somewhere between ten and twelve feet.'

 From the foregoing summary it clearly appears that the issues of defendant's negligence and of decedent's contributory negligence were for the jury. At the trial the credibility of the witness Valentino was strenuously attacked by defendant. He was subjected to severe cross-examination as to his presence on the highway behind the decedent, with defendant's counsel inferring that whether Valentino was on the scene that morning was very questionable. However, at the argument on the pending motions, defendant adopted the testimony of Valentino and urged that it shows, as a matter of law, that decedent Johns was himself negligent. Defendant says that as plaintiffs' principal witness showed that decedent stopped his car upon the track and it remained there for a period of five or six seconds until struck by the approaching train, there can be no recovery because decedent was negligent. The crux of defendant's argument is that the proximate cause of the accident was the act of plaintiffs' decedent stopping on the track, and defendant's brief says that '* * * if he had not stopped there would have been no accident. This act was negligent. The Court should have dismissed the Complaint.'

 On the trial plaintiffs were entitled to the presumption that the decedent, having been killed in the accident, was in the exercise of due care. Nevertheless, defendant directs its attack upon the plaintiffs' evidence as to the decedent's actions in the seconds prior to the collision as a basis for judgment n.o.v. Defendant urges that as the witness Valentino explained the movement of Johns from the time he stopped at the crossing until his car was struck the presumption of due care vanishes, because it is rebutted by plaintiffs' own evidence. Plaintiffs say on this point, however, that the Valentino testimony strengthens the presumption that decedent Johns was in the exercise of due care. Plaintiffs say that it seems illogical and unreasonable that proof of due care will rebut the presumption of due care.

 The Pennsylvania decisions seem in agreement that in situations where the presumption of due care arises in the first instance, after testimony is introduced, if the testimony clearly shows that a decedent failed to exercise due care, then the presumption is obliterated. The decisions, however, must be carefully examined to determine whether every act of a decedent is explained or revealed by the evidence offered. As the Supreme Court of Pennsylvania said in Giles v. Bennett, 298 Pa. 158, at page 163, 148 A. 90, at page 91:

 'The foregoing testimony, all of which came from plaintiff's own witnesses, does not fully account for the actions of deceased from the time he passed in front of the standing trolley until he reached the middle of the adjoining east-bound track on which he was struck by defendant's truck, so as to justify the legal conclusion that the presumption of due care was rebutted. Patterson v. (Pittsburgh, C., C. & St. L.) Ry., 210 Pa. 47, 49, 59 A. 318; Hanna v. (Philadelphia & R.R.), 213 Pa. 157, 160, 62 A. 643, 4 L.R.A.,N.S., 344. In both of the above cases the evidence failed to account for the actions of deceased during the entire time as he approached the railroad tracks, and it was held to be for the jury to say whether the presumption was rebutted. A question of sufficiency of evidence to rebut the presumption of due care, appears in Hartig v. American Ice Co., 290 Pa. 21, at page 33, 137 A. 867, 871, where it is said: 'In all our recent cases, we have consistently held that oral evidence relied on to overcome presumptions sufficient to take plaintiff's case to the jury must be submitted to that body to determine as to the credibility of the witnesses, the inferences to be drawn from their testimony, and the facts to be found therefrom, unless the testimony in question, being clear, positive, credible, uncontradicted and indisputable, shows physical facts or forms the basis for mathematical tests which demonstratively govern the case in defendant's favor."

 It seems reasonable that the presumption of due care can either be lessened or strengthened by testimony. In Harris v. Reading Co., 325 Pa. 296, at page 301, 189 A. 337, at page 339, the court states specifically:

 '* * * When a person loses his life in a crossing accident, there is a presumption that such person at the time of the accident was exercising due care: Tull v. Baltimore & O.R.R. Co., 292 Pa. 458, 141 A. 263; Morin v. Kreidt, 310 Pa. 90, 164 A. 799; Brown v. Reading Co., 310 Pa. 516, 165 A. 856; Michener v. Lewis, 314 Pa. 156, 170 A. 272. This presumption is greatly strengthened when there is testimony, as there is here, that the decedent fully performed his duty to stop, look, and listen before crossing the track: Razzis v. Philadelphia & R. Ry. Co., 273 Pa. 550, 117 A. 204; Ehrhart v. York Ry. Co., 308 Pa. 566, 162 A. 810. This presumption has not been rebutted by anything disclosed by a review of the record.'

 Further, as bearing out the proposition urged by plaintiffs that the presumption of due care can be strengthened in a proper case, the Supreme Court of Pennsylvania has said in Hanna v. Philadelphia & R. Ry. Co., 213 Pa. 157, at page 161, 162, 62 A. 643, at page 644, 4 L.R.A.,N.S., 344:

 '* * * On the other hand, the presumption that the deceased did his duty before going on the tracks is strengthened by his course of action on his way to the crossing. He stopped three times to look for approaching trains, and may or may not have stopped a fourth time. These facts, added to the legal presumption that he exercised due care, make a particularly strong case in favor of the plaintiff.' (Emphasis added).

 In the present case, according to Valentino, the Johns car was seen to stop five or six feet south of the rail which was the usual, effective and customary place of stopping at that crossing and was the point at which the best view to the east could be had. He then looked both ways and at that moment no train was in view, nor did Valentino hear a warning. The witness was some eighteen feet in back of the Johns car. The reason why Johns moved his car onto the track and remained stationary thereon for some few seconds is unexplained in the testimony. Thus, the presumption applies to the unexplained acts of the decedent. Plaintiffs are entitled to the presumption that in moving forward and stopping he was still in the exercise of due care. Whether the stopping was the result of mechanical failure of the car or because of Johns being startled by the sudden view of the oncoming locomotive upon him, or otherwise, the presumption remained in the case and was strengthened by the other facts and circumstances testified to by the witnesses.

 At this point in this discussion the court having in mind the principles heretofore mentioned, which are to be considered on a motion for judgment n.o.v., it is abundantly apparent that the evidence does not warrant the granting of the motion because of decedent Johns' contributory negligence. Under plaintiffs' evidence that issue was for the jury and the court will not disturb the jury's verdict on that ground.

 On the issue of defendant's negligence, plaintiffs' evidence was directed to three principal categories. The first was its evidence describing the crossing, the terrain, the distances east from the middle of the tracks and from various points on the highway eastwardly along the tracks, the height of the south bank east of the crossing, and the growth of the vegetation thereon, and the flasher-light poles or standards. The second is plaintiffs' evidence that no warning of the approaching train was given by defendant's train crew. The third general category of plaintiffs' evidence was directed to the speed of the train as being excessive and in this connection plaintiffs urged that not only was the speed excessive in relation to the character of the crossing, but also it was excessive as being over that speed permitted or authorized under defendant's safety regulations.

 As to the height of the weeds and shrubs on the bank south of the tracks, there was positive testimony from nearby residents as to the growth of the weeds and that the weeds obstructed the view from a point a few feet south of the rails. It is noted that the accident occurred on September 15, which was at a time when the weed growth was at its maximum. As to the bank parallel to and south of the tracks, the testimony of the civil engineer called by plaintiffs is uncontradicted. He had made various measurements as to ground elevations and distances at and east of the crossing. His testimony showed the top of the bank south of the tracks was 1 7/10 feet in height, 27 feet east of the crossing. Continuing east, at 49 feet the elevation was 3 2/10 feet; at 84 feet it was 2 2/10 feet; at 115 feet it was 5 1/10 feet; at 200 feet it was 10 1/10 feet; and at 300 feet it was 9 6/10 feet. Twenty-seven feet east of the crossing the track was 1/10 of a foot lower than the elevation at the crossing and at 495 feet, at which point the top of the bank was 9 5/10 feet, the track was 5/10 of a foot lower than it was at the crossing, indicating that it was a level track, that is, in five hundred feet there was but a 5/10 of a foot grade. The character of the crossing, the height ...

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