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June 23, 1958

Ray CONNER, Administrator of the Estates of Esther Benedetto, Emily D'Ascenzo, Joseph D'Ascenzo, Jr., and Donna D'Ascenzo, Deceased,

The opinion of the court was delivered by: GRIM

A three-car electric suburban passenger train of the defendant struck an automobile at a grade crossing and killed four people *fn1" who were passengers in the automobile. These actions arise out of their deaths. The driver of the automobile was also killed, but is not involved in these actions.

The collision occurred January 31, 1956, at 3:18 p.m. in Secane, Delaware County, Pennsylvania, where the two-track West Chester branch of the railroad crosses Bishop Avenue. Coming from the south, the first track encountered is for eastbound trains and the second for westbound. The tracks are straight for more than 3,000 feet east of Bishop Avenue (P-24, 25). The train was westbound on the second track and the automobile was going north on Bishop Avenue.

 Bishop Avenue at the crossing has an asphalt surface about 20 feet wide and shoulders on each side of the asphalt. In the east shoulder, 26 feet 8 inches south of the nearest rail of the eastbound track and 39 feet south of the nearest rail of the westbound track (R. 85), is a metal standard having at its top a crossbuck bearing the words 'Railroad Crossing', below it a plate with the words '2 Tracks', below that a horizontal crossarm bearing at each end red electric lights, two facing south and two facing north, and near the bottom a sign reading 'Stop On Red Signal.' A similar standard stands in the west shoulder of Bishop Avenue north of the crossing. The lights are called blinker lights. When operating, one light in each pair is turned on for a few seconds and goes out, whereupon the other light of the pair is turned on for a few seconds and goes out. The lights in each pair thus light alternately. The blinker lights on both standards work at the same time, so that a person approaching the crossing can see lights flashing on both standards. The blinker lights are put into operation automatically when a train on the westbound track arrives at a point 2,845 feet east of the crossing (R. 322). The lights go out when the train clears the crossing. There is no bell, crossing watchman, or safety gate.

 On the date of the collision a total of 74 trains traversed the crossing, half eastbound and half westbound (R. 78). During the morning and evening rush hours (7:30-10:30 a.m. and 4:30-7:30 p.m.) shortly after the collision, surveys showed that some 2,100 automobiles traversed the crossing daily.

 There was evidence that the blinker lights at Bishop Avenue sometimes operated for periods of a number of minutes without the appearance of trains at the crossing, but there was no evidence that the driver of the automobile knew of this (R. 207).

 Persons approaching the Bishop Avenue crossing from the south have a very limited view down the tracks to the right. On the south side of the crossing there is a two-story dwelling 46 1/2 feet east of the east side of Bishop Avenue and 46 1/2 feet south of the nearest rail of the eastbound track (R. 85, 86). There are a total of three steps up from the sidewalk to the front door of the house (P-11, or P-3 plus P-7). Near the northwest corner of the house stands an evergreen tree as high as the top of the first floor window. The width of the foliage on the tree is three-quarters of its height. North of this house and parallel with the tracks there is a row of shrubs and small trees. The highest of these stands about 11 feet above the roadbed of the railroad and 14 feet south of the nearest rail of the eastbound track (R. 86). At the time of the accident it was possible, from a point south of the blinker light, to get a limited view of the railroad through gaps in the shrubbery (R. 92.). When the eye is in Bishop Avenue in line with the row of shrubbery, looking eastward, it can see little more than five rail lengths of the westbound track (P-10). Sitting in an automobile moving northward toward the crossing, the first unobstructed view of the railroad to the right appears when the front bumper is at a point two feet south of the first of the four rails of the crossing.

 There is a whistle board 895 feet east of the crossing (R. 74), at which it is the duty of engineers of westbound trains to begin the standard four-blast whistle signal (two longs, a short, and a long) to warn of their approach to the crossing (R. 421).

 The weather at the time of the collision was clear and dry.

 Each car of the train had its own propulsion machinery and air brakes. There was no separate locomotive.

 Plaintiff's decedents were in a Pontiac sedan riding northward on Bishop Avenue toward the crossing. The blinker lights were operating (R. 159, 167), indicating the approach of a train. The Pontiac came to a stop beside the blinker light standard south of the crossing. At this time the adult passengers in the Pontiac were engaged in an animated conversation, with gestures, which continued until the collision (R. 170, 182). The Pontiac then proceeded forward a foot or two and stopped, and repeated this 'inching movement' several times until it arrived almost at the eastbound track (R. 160, 161). From a stopped position there, it started up and proceeded across both tracks, attaining a moderate speed (R. 176). As it straddled the westbound track the train struck it broadside (R. 162) and demolished it. The front of the train, with the automobile adhering to it and sliding on the rails (R. 444) came to a stop 525 feet west of Bishop Avenue (R. 454).

 The train had made a stop at Primos station, some 2,855 feet east of Bishop Avenue. It proceeded normally, gathering speed until it was traveling at a speed of 50 miles per hour (R. 510). At the whistle post east of Bishop Avenue the engineer began the four-blast signal for the crossing (R. 509). When he was 150 feet from the crossing he saw the Pontiac moving toward the tracks (R. 514), and immediately let go of the control lever, which had the effect of an immediate emergency brake application (R. 515).

 The jury in this case returned a verdict for the defendant railroad company, and the plaintiff has moved for a new trial.

 The basis of the plaintiff's case is, as it must be, that the deaths were the result of the defendant's negligence. There is no issue of contributory negligence on the part of the decedents. The two children, because of their age, were incapable of negligence, contributory or otherwise, and there was no evidence of facts indicating that the adult passengers had any right or power to control the operation of the automobile, Anstine v. Pennsylvania R. Co., 1941, 342 Pa. 423, 430, 20 A.2d 774. In addition, the deceased passengers have the benefit of the presumption that they exercised due care.

 One of the plaintiff's averments of negligence is that under the circumstances defendant failed to give adequate and timely warning of the train's approach, and particularly so in the light of the number of trains passing over the crossing, the number of automobiles traveling on Bishop Avenue, the speed of the trains, and the urban character of the area in which the crossing is situated. In considering the facts it must be borne in mind ...

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