McLaughlin, Forman and Ganey, Circuit Judges. Ganey, Circuit Judge (dissenting).
This is an appeal from the result of a negligence action brought in the United States District Court for the Western District of Pennsylvania by Betty Jane Goss, executrix (hereinafter appellant) of the estate of Iva Merriman (hereinafter decedent), against the Baltimore & Ohio Railroad Company (hereinafter appellee) in which a jury verdict was entered in favor of the appellee and a motion for a new trial was denied. Jurisdiction is founded on diversity of citizenship with the applicable substantive law being that of Pennsylvania.
The decedent, a widow of 47 years, was fatally injured on March 2, 1962 while in her automobile which stalled facing south on the westerly side of the Broadway Street railroad crossing in Coraopolis, Pennsylvania, when the car was struck by one of appellee's trains operating westward out of Pittsburgh. The issue of appellee's negligence and decedent's contributory negligence was submitted to the jury and resulted in a verdict in favor of the appellee.
The District Court refused appellant's requested points for charge with regard to willful and wanton negligence upon the part of the appellee's agent, the train's engineer.*fn1 In the main, the facts and points of law raised on this appeal relate to the propriety of the District Court's precluding the jury from considering that issue.
The relevant facts bearing upon the issue of willful and wanton negligence emerge relatively free from dispute. The crossing was not defective and the signalling equipment was sound and functioning properly. At 3500 feet the engineer could see the crossing, but he stated that his view of the stalled automobile was obscured by vehicles moving on the easterly portion of the crossing between the vehicle and his line of vision. The accident occurred at about 7:20 a.m., when workers were traveling to their places of employment and substantial traffic was moving over the crossing. At a point approximately 3300 feet east of the crossing the train automatically activated the ringing of bells and the oscillating of lights on each side of the crossing as well as a light on each highway gate guarding the crossing. Seventeen seconds after the bells and lights began to operate the highway gates were made to automatically descend to bar traffic over the crossing. The engineer testified that he was first able to observe the stalled automobile at what he put as the location of a whistle post along the tracks 1400 feet east of the crossing.
At about a mile east of the crossing he had begun to apply his service brakes to throttle the speed of the train down from 70 miles per hour to a contemplated 35 miles per hour, the rate at which his regulations required him to proceed through the Broadway Street crossing and the crossings that followed to the west through the town of Coraopolis. He estimated that at the whistle post the speed of the train was 50 miles per hour. On his first sight of the stalled car he immediately applied his emergency brakes, at a point which he estimated as 1350 feet east of the crossing. At the speed the train was then running it could not have been stopped in less than 2000 feet.
The decedent was outside of the car pushing it with the aid of a passerby when the crossing gates were lowered. She then reentered the automobile. Her helper shouted a warning to her to leave the car. She did not and the tragic collision occurred. Her bizarre conduct in reentering the automobile in the very face of the locomotive bearing down upon her defied explanation.
The District Court calculated that at the rate of 50 miles per hour the train was moving 75 feet per second and that in 17 seconds, the time that elapsed from the point of activation of the crossing bells and lights (3300 feet east of the crossing) to the lowering of the gates, the train traveled 1275 feet (17 X 75). It further computed that in the 17 seconds the train reached a point 2225 feet*fn2 east of the crossing. The District Court assumed for the sake of determining whether to charge willful and wanton misconduct that the tracks cleared as the gates were lowered at 2225 feet. It will be remembered that the engineer testified that he observed traffic moving on the crossing until the train was 1400 feet therefrom. Thus, it is apparent that the District Court discounted the engineer's testimony in this respect. The District Court then found that between the point of 2225 feet, when the gates lowered themselves, and the point of 1350 feet, where the emergency brakes were applied, the train moved 875 feet.*fn3 At the rate of 75 feet per second, but reflecting that the train's speed was slackening as it approached the crossing, the District Court found that the engineer had taken no more than 10 seconds to make the decision to apply his emergency brakes, and to apply them. It concluded that although such a 10 second period of lapsed time could be held to be ordinary negligence, it was not sufficient, as a matter of law, to warrant a determination of willful and wanton negligence under the facts of this case. In an unreported opinion*fn4 denying the motion for a new trial the District Court differentiated this case from Geelen v. Pennsylvania R.R. Co.*fn5 and held that here
"* * * the testimony is lacking in showing that he [the engineer] had actual knowledge of decedent's peril for sufficient length of time before the accident to give him a reasonable opportunity to stop his train and avoid the accident."
Willful and wanton misconduct was defined in the recent case of Evans v. Philadelphia Trans. Co.:*fn6
"* * * Correctly speaking, wilful misconduct means that the actor desired to bring about the result that followed, or at least that he was aware that it was substantially certain to ensue. This, of course, would necessarily entail actual prior knowledge of the trespasser's peril. Wanton misconduct, on the other hand, 'means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences. * * *' Prosser,
Torts § 33 at 151 (2d ed. 1955)."
In our case the gates began to descend to clear the crossing when the train was 2025 feet from it. This left practically no time for the engineer to discern the danger and to apply his brakes if he was to avoid collision by bringing his train to a stop within 2000 feet. It is apparent as a matter of law, that the engineer's conduct fell without the above definition of willful or wanton misconduct. The risk of impact with decedent's stalled automobile could neither ...