Appeal from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1961, No. 3404, in case of Martha V. Wilson, administratrix of estate of Eugene Wilson, deceased, Martha V. Wilson, trustee ad litem for minor children, and Martha V. Wilson v. The Pennsylvania Railroad Company.
Samuel L. Rodgers, with him Alice D. Tobias, and Rodgers and Roney, for appellants.
Aloysius F. Mahler, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen concurs in the result.
This is a trespass suit for personal injury and property damages resulting from an accident which occurred in the early afternoon of December 22, 1959, at The Pennsylvania Railroad Company Ferry Street grade crossing in Allenport. At that time and place, defendant's train, consisting of 3 diesel locomotives and 135 empty coal hopper cars, struck the motor vehicle in which Eugene Wilson was driving alone. As a result of the collision, Wilson, thrown from the car, died on the way to the hospital.
Martha V. Wilson, widow of decedent (plaintiff), instituted three actions: (a) under the Wrongful Death Act for herself and as trustee ad litem for her minor children; (b) under the Survival Act as administratrix of her deceased husband's estate; (c) in her
own right as the owner of the automobile which was damaged in the collision.
At the trial, conflicting evidence was introduced as to whether or not the train sounded a warning whistle, whether or not the crossing had been ashed so as to make it safe for motor vehicles, and whether or not decedent's automobile had stopped on the crossing prior to the train's arrival or had backed into the oncoming train.
The jury rendered verdicts for defendant in all three actions. The court en banc refused plaintiff's motion for a new trial and entered judgment on the verdicts for defendant. Plaintiff, seeking a new trial, has appealed to this Court.
Plaintiff first contends that the trial court erred in refusing to affirm the following point for charge. "It is the duty of a railroad company to give sufficient notice of the train's approach on crossing a much-traveled highway, and to moderate the speed to such rate as is consistent with public safety, and, in determining such reasonable rate of speed, the jury may consider the fact that no flagman was stationed nor gates maintained there. 31 P.L.E. Railroad, Section 167, page 24." (Point 6).
Plaintiff argues that the court's refusal to affirm this point in effect eliminated the issue of excessive speed of the train from the jury's consideration. Taking the charge as a whole (as we are bound to do in determining whether or not reversible error was committed in instructing the jury (James v. Ferguson, 401 Pa. 92, 162 A.2d 690)), we believe that the points of law contained in the above requested instruction were sufficiently and adequately covered by other instructions requested by plaintiff and affirmed by the court. Plaintiff's Point 5 -- which was read to the jury -- in slightly different language, enunciated the same legal requirements as Point 6 as to the sufficiency of the
train's warning in view of the train's speed: "A railroad's employees in charge of a train are bound to give timely and sufficient warning of the train's approach to a crossing. Generally, the adequacy of a signal given when approaching a crossing depends on whether warning was given soon enough in view of the rapid movement of the train, but the adequacy of the signal may depend upon whether the signal was given too soon in view of the retarded rate of speed of the train and in either event the question is whether the warning was timely, in view of all the circumstances." (Point 5) (Emphasis added). Plaintiff's Point 4 -- which was also read to the jury -- stated that, if an engineer apprehends that a person on or approaching a crossing will be in danger, "it is his duty to slacken the train's speed and, if possible, to stop it in order to avert an accident." Under the instant circumstances, the trial court did not err in refusing Point 6; in essence, such point was simply repetitive of legal concepts included in Points 4 and 5.
Moreover, plaintiff's counsel contends that "the lower court further refused to charge that the railroad had breached any duty by not having a flagman or gate or other protective device at the crossing in question . . . ." A careful reading of plaintiff's Point 6, supra, reveals that such point contained no such direct request to the trial court nor did any other point. Point 6 states that the lack of a flagman and gates should be considered on the issue of the reasonableness of the train's speed but did ...