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February 3, 1967

Dale C. CAGE, Administrator of the Estate of Carolyn Sue Cage and Dale C. Cage, Administrator of the Estate of Antoinette E. Cage, and Dale C. Cage, Plaintiff,
NEW YORK CENTRAL RAILROAD COMPANY, a corporation, Defendant and Third-Party Plaintiff, v. Dale C. CAGE, Administrator of the Estate of Carolyn Sue Cage, Third-Party Defendant

The opinion of the court was delivered by: WEBER

 This wrongful death and survival action arises out of a collision between an automobile and a train on the Pittsburgh Avenue grade crossing at the western limits of the City of Erie. The jury by special interrogatories found the decedent driver contributorily negligent but found the railroad guilty of wanton and wilful misconduct and awarded damages to plaintiff administrator for the death of the driver and the guest passenger.

 Much of the factual background of this case concerns the layout of this grade crossing. Pittsburgh Avenue is a very heavily traveled traffic artery, running north and south. At the point of the accident it crosses perpendicularly adjoining rights-of-way of two railroad companies, the Pennsylvania Railroad to the north containing three tracks, and the New York Central to the south containing three tracks. The street crossed seven tracks originally, but at the time of the accident the northernmost New York Central track had been removed at the street crossing but the remainder of this track leading westward from the street was still in place. The removal of this track at the street crossing left a space of twenty-five feet between the southernmost Pennsylvania Railroad track, and the northernmost New York Central track. Coming to the crossing from the north, as the decedent driver was doing, there is a signal flasher at the right-hand side, and beside this is a small shed. One must pass this signal and shed before the tracks to the west can be viewed. At that point an automobile would be upon the northernmost Pennsylvania Railroad track. The Pennsylvania Railroad tracks to be crossed also connect with switching yards to the east of Pittsburgh Avenue. After passing the three Pennsylvania Railroad tracks and the twenty-five foot cleared space there are three New York Central tracks. From north to south the area of the street crossed by tracks is over one hundred feet in length.

 Much testimony was introduced concerning a peculiarity of the signal flasher. Pennsylvania Railroad trains, switching or standing on tracks to the east of Pittsburgh Avenue, were frequently visible to drivers using this grade crossing. It was established that these trains would activate the crossing signal if they approached within 341 feet east from the crossing. This signal flasher is also operated by a contact on the New York Central Railroad main line tracks 4,054 feet west of Pittsburgh Avenue, the direction from which the train in question was approaching. There was considerable testimony that the flashing signal would operate at times when no train was seen approaching but when Pennsylvania Railroad trains were seen standing or switching to the east. There was also testimony that the lights would operate when no trains were approaching, and that traffic police were on occasions called to relieve the traffic tie-up and railroad maintenance personnel were called to shut off the signals. This situation was known to drivers who used this grade crossing frequently, including plaintiff's decedent driver.

 At about 5 p.m., on April 18, 1964, a rainy, misty afternoon, three cars approached this crossing from the north. The first car was occupied by Mr. and Mrs. Steger. As they approached there was a Pennsylvania Railroad train to the east, either standing or slowly moving. As Mr. Steger passed the signal standard on the north side and was on the northernmost Pennsylvania Railroad track the warning signal began flashing. He observed this by seeing the flashing signals ahead at the southern side of the crossing. His wife, sitting in the right front seat, saw nothing to the west. He proceeded across when his wife called out that a train was approaching from the west. Her attention was first attracted by its headlights. At her cry, Mr. Steger looked to the right, saw the train approaching and stepped on the gas and got out of there.

 The third car in line proceeding south was that occupied by plaintiff's two decedents. It was struck by the New York Central train proceeding eastwardly along track No. 2 at 78 m.p.h.

 The engineer of the nearby Pennsylvania Railroad train testified that he was proceeding westwardly and brought his locomotive to a stop at a point east of the Pittsburgh Avenue crossing. He did not reach the point where his locomotive would activate the Pittsburgh Avenue warning signal. He saw the warning signal flashing and saw several vehicles proceeding across the crossing from north to south, including the Cage car. It appeared to be bumper-to-bumper behind the car ahead. He saw the headlight of the eastbound New York Central train come into view, and saw the train collide with decedent's automobile.

 A train approaching this crossing from the west activates the flashing signal from a contact point 4,054 feet away. At this point the train is out of sight of the crossing around a curve. At a point 1,983 feet west the curve straightens and the crossing is first visible. At a point 1,663 feet west there is a marker for a whistle post.

 The engineer of the New York Central train testified that as he rounded the curve and came into view of the Pittsburgh Avenue crossing he saw three cars which he described as being on the Pennsylvania Railroad property. This would be the three northernmost tracks of the crossing and part of the twenty-five foot paved area between the Pennsylvania Railroad and New York Central tracks. The last car, the plaintiff's Volkswagen, was south of the Pennsylvania Railroad shanty, and thus actually on the railroad tracks which form part of the crossing. The cars were bumper-to-bumper and appeared to be standing. At a point fifty feet west of the whistle post he started to blow the regular crossing whistle signal and as he saw the first and second cars moving he broke into several sharp blasts of the whistle. He observed the first car clear his track, he saw the second car just barely clear his track, but he never saw the third car, even when it hit. He was proceeding at 78 m.p.h. and did not attempt to reduce speed or apply brakes until the collision. He testified that he did not attempt to brake or decelerate when he first saw the three cars on the Pennsylvania Railroad tracks because he thought they were going to wait until he passed, and that only after he had begun to blow the whistle did he see the first two cars moving. He testified that it would have been useless to apply the brakes or attempt to reduce the speed of the train at that distance. He testified that if he had decelerated when he first saw the cars, the reduction in speed would not have been noticeable in that distance. He apparently did not consider the application of emergency brakes because of danger to personnel on the train. There was expert testimony on behalf of the Railroad that on a train of this size, without counting individual reaction time, it takes ten seconds from the time of application of full service brakes for them to begin their effect, and three seconds after the application of emergency brakes to have them begin their effect, and these times are the same regardless of the speed of the train because of the mechanics of operation of air brakes.

 The case was submitted to the jury on a charge of negligence, wanton negligence and contributory negligence. Four interrogatories were answered by the jury. They found the railroad guilty of negligence, the plaintiff's driver guilty of contributory negligence, the railroad guilty of wanton negligence, and the driver free of wanton negligence. They returned a general verdict for both decedents. Defendant has moved for judgment N.O.V. and for a new trial.


 Defendant's main contention in moving for judgment N.O.V. is that the submission of the issue of wanton negligence to the jury was error because there was no evidence of wanton negligence. Defendant also argues that there was no evidence of negligence on the part of the railroad, but this would not be material in view of the finding by the jury of contributory negligence of plaintiff's driver.

 In considering the N.O.V. motion we must take all evidence and all inferences reasonably arising therefrom in the light most favorable to plaintiff. A jury verdict must be affirmed if any reasonable inference from the facts support it. Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 (1965).

 The evidence and inferences in favor of the plaintiff here may be taken to establish that:

 1. The Pittsburgh Avenue crossing is a heavily traveled crossing in a populated area.

 2. The crossing is not protected by gates, but has a flashing light sign whose function is confusing in that it will operate when no thru trains are approaching, including operation by trains visibly standing or switching nearby.

 3. The peculiarity of operation of the signal was known to many people using the crossing including plaintiff's decedent driver.

 4. Approaching from the north the driver of a vehicle cannot see to the west on the thru tracks until he has passed the signal and the adjoining shed and is actually upon the northernmost track of the crossing.

 5. To clear the crossing one must pass three Pennsylvania Railroad tracks, then a twenty-five foot clear space which has a track leading up to it from the west, and then cross three New York Central tracks.

 6. The flashing light will begin operation at the approach of a New York Central train 4,054 feet west of the crossing, out of sight of persons using the crossing.

 7. The crossing is first visible from a train approaching from the west at 1,983 feet.

 8. A driver on any track of the crossing, seeing an oncoming train, has no way of knowing on which track the train is approaching and thus believes himself in a position of peril.

 9. The twenty-five foot cleared space between the New York Central and the Pennsylvania Railroad tracks also appears to be a position of peril to one upon it because in looking to the west from inside an automobile tracks lead directly into it.

 10. In heavy traffic, a driver can only clear the crossing by proceeding ahead.

 11. The New York Central Railroad had knowledge of the dangerous nature of the crossing.

 12. The New York Central had a track speed posted for this heavily traveled crossing at 80 m.p.h., a speed at which its trains could not be stopped within the range of visibility from the curve to the crossing.

 13. The engineer was running the train at 78 m.p.h. before he came into view of the crossing, knowing that it could not be stopped in time if there were something on the crossing.

 14. When the engineer came into view of the crossing, at a point 1,983 feet away, there were three southbound cars already upon the Pennsylvania Railroad tracks of the crossing.

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