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BURD v. PENNSYLVANIA RAILROAD COMPANY. (10/10/60)

October 10, 1960

BURD, APPELLANT,
v.
PENNSYLVANIA RAILROAD COMPANY.



Appeals, Nos. 6 and 7, May T., 1960, from order of Court of Common Pleas of Dauphin County, Sept. T., 1954, Nos. 19 and 27, in cases of Denton B. Burd v. The Pennsylvania Railroad Company, and Robert P. Ulrich v. Same. Order affirmed.

COUNSEL

Elmer E. Harter, and H. Albert Lehrman, for appellants.

John McI. Smith, with him W. E. Shissler, James H. Stewart, Jr., and Nauman, Smith, Shissler & Hall, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 401 Pa. Page 286]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

These are two appeals from an order of the Court of Common Pleas of Dauphin County granting a new trial in two separate trespass actions*fn1 which arose out of a grade crossing accident on September 19, 1952.

The jury returned a verdict of $60,000 for Burd and $15,000 for Ulrich*fn2 and against the Pennsylvania Railroad Company. Motions for judgment n.o.v. and for a new trial were filed by the Railroad in each case. The court overruled the motions for judgment n.o.v. and granted new trials on the ground that the verdicts were "against the preponderance of the evidence". From this order awarding the Railroad new trials, Ulrich and Burd have appealed.

The appellants, Denton B. Burd and Robert P. Ulrich, employees at the Olmstead Air Force Base, Middletown, Pa., at about 8:33 a.m. (EDST) on September 19, 1952 were engaged in hauling a load of steel by tractor-trailer southwardly on Route 441 from that base to Marietta. Ulrich was the operator of the vehicle and Burd was seated in the right-front seat beside him. As they proceeded eastwardly over a grade crossing located south of the Borough of Royalton, Dauphin County, where Route 441 crosses over the tracks of the Columbia Branch of the Pennsylvania Railroad Company,*fn3 the tractor-trailer was

[ 401 Pa. Page 287]

    struck by a southbound freight train which consisted of 47 box, tank and refrigerator cars propelled by an electric locomotive.

The tractor-trailer, which had an over-all length of 64 feet, was struck at a point 14 feet from the rear of the trailer. Both Burd and Ulrich had traveled the route on a number of prior occasions and were familiar with the crossing. Under normal weather conditions there is an unobstructed view in excess of fourteen hundred feet looking north - the direction from which the train approached - from the crossing. Fourteen hundred feet north of the crossing was a whistle sign erected on a catenary pole and the tracks run in a straight line from that sign to the crossing. A "Stop, Look and Listen" sign guarded the crossing. At the time of the accident it was daylight and the weather was rainy.

According to the testimony of the engineer and fireman, when the train was 100 to 150 feet past the whistle sign,*fn4 the engineer gave four blasts of the whistle, - two long, a short and a long - , and at the same time opened the automatic valve which rang the bell continuously to the crossing. Their testimony fixed the speed of the train at between 20 and 23 miles per hour and that of the truck at 25 miles per hour. They also testified that the tractor-trailer slowed down and then started across the tracks without coming to a stop. The engineer further testified that, at a point 250 feet from the crossing, he first observed the tractor-trailer proceeding southwardly ahead of him on the highway; that when he was 100 feet from the crossing he saw the tractor-trailer enter the crossing, whereupon he applied the emergency

[ 401 Pa. Page 288]

    brakes. The train stopped, according to his testimony, 350 feet south of the point of impact.

In addition to this evidence concerning the appellants' failure to stop at the crossing, the Railroad offered written statements given to an investigating officer of the Olmstead Air Force base. In these statements Ulrich and Burd both stated that they did not stop before entering the crossing. Burd, in his statement, said, "We didn't come to a full stop as we were making the turn at the meatpacking plant. We came to a point where we shifted into low gear and I would say that if it would have been necessary to stop that we could have stopped at two feet." Ulrich, in his statement, said, "I do not remember whether or not I made a full stop before I went up on the crossing. I don't think I did ... I don't think I was to a full stop, but I do know I slowed down." The statements further indicated that Ulrich was watching the road ahead of him and looking beyond the railroad tracks at the hills and that it was Burd who directed Ulrich's attention to the presence of the train.

The testimony of the engineer and fireman as to the warning signals was corroborated by other witnesses. Two brakemen, riding backwards on the rear of the locomotive, testified that they heard the blasts of the whistle. They testified that these blasts consisted of the sequence, two longs, a short and a long. They did not hear the bell. A witness living in the Borough of Royalton north of the whistle sign and in sight of the tracks testified that he was on his roof fixing the antenna of his television set at the time and that he heard the blasts of the whistle and bell. Another witness, the track foreman, testified that he heard the train's warning signal being given and the emergency brakes being applied.

[ 401 Pa. Page 289]

There was also testimony on the question of visibility.

The operator of the signal tower 2,000 feet from the crossing testified that the crossing could be seen at the time from the tower. The witness who was fixing the television antenna testified to the effect that he could see the crossing over 1,400 feet away. The track foreman testified he saw the train at the crossing, immediately after the accident, more than 1,400 feet away. One brakeman testified he could see back along the train 20-25 car lengths and the other said he could see half the length of the train. The testimony of the U.S. Weather Bureau at Harrisburg Airport showed that, at 8:38 a.m. (EDST), it was raining and that the visibility was 2 1/2 miles. The weather report taken at the Middleton Air Force base - one and one-half miles ...


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