Appeals, Nos. 24, 25, and 26, March T., 1959, from judgments of Court of Common Pleas of Allegheny County, July T., 1952, No. 201, in cases of Anna E. Leghart et al. v. Montour Railroad Company et al. Judgment for wife plaintiff affirmed; judgment for husband plaintiff reduced and affirmed; reargument refused May 20, 1959.
Harold R. Schmidt, with him, William M. Gardner, and Rose, Rose and Houston, for appellant.
Robert L. Prior and Joseph F. Weis, Jr., with them Julia M. Doyle, James P. McArdle, and Weis & Weis, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE BOK
The plaintiffs, husband and wife, have verdicts for personal injuries which the Court below sustained. Defendant asks for judgment non obstante or a new trial.
The accident happened at a crossing, at a time when the road was being used as a detour for Route U.S. 30. It was between three and four in the morning, rain was falling, and the road was black-topped. Plaintiffs, driving northwest on the detour, crossed a small bridge and at once came to defendant's tracks, which crossed the detour at right angles. Immediately beyond the tracks the road ended in an irregular T.
In the automobile were the plaintiffs; husband driving, his wife beside him, a son and daughter and the son's fiancee in the back seat. The driver stopped, looked, and listened, saw nothing, and went on slowly across the tracks. The blinker lights of the crossing signal were not flashing, and it was for the jury to say whether they did not flash at all, as the plaintiffs said, or whether they went on automatically when the train was 815 feet distant, as defendant said they were designed to do. In making a 90 degrees right turn at the T, one of the car's right wheels went into a hole, three by two feet by twelve inches deep, that nestled in the angle of the turn and lay about two and a half feet from the rails at its nearest point. The driver did not see the
hole, as he was looking first at the tracks and then at the T-end of the road for traffic and for a sign telling him which way to turn. He couldn't see very well, since the rain and the black top of the road made the surface dark, and he couldn't tell thether there was a hole or not.
He tried to extricate the car by surging it backward and forward, but to no avail. When he opened the door to get out he heard the whistle of a train, and told everyone to get out at once. The two girls did so by the left door, and the son pushed the right front seat forward in order to get out from behind his mother and then turned to help her, because she had an ulcered foot. When her feet were on the ground she saw the train and pushed her son to safety. All but her got away. The engine hit the car, pushed it into her, turned it through 180 degrees, and stopped 45 feet past the crossing.
The train was visible for 294.5 feet, due to a 45 degrees curve from east to northeast which ended about at the crossing. It consisted of two engines and a caboose and was going from twelve to fifteen miles per hour. The engineer said that he had been whistling and belling for 2000 feet, but the left curve made the rails ahead invisible and the beam of the headlight go away from the tracks to the right. He had to rely on the fireman, who saw the car on the ...