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October 18, 1968

Betty L. SLATER and Harley D. Slater, her husband, Plaintiffs,

The opinion of the court was delivered by: WEBER

 This is a diversity action to recover damages for personal injuries suffered by the wife-plaintiff, Betty L. Slater, in a grade crossing accident in Greenville, Pennsylvania. Wife-plaintiff was the owner of the automobile involved in the accident. She claims that as a result of the accident she has suffered a loss of memory of the details of the accident, as well as prior events. She claims the presumption of due care in her favor on the question of her contributory negligence. In such circumstances she is entitled to the same presumption as that accorded a decedent. Kmetz v. Lochiatto, 421 Pa. 363, 219 A.2d 588 [1966]:

"[This presumption in a railroad crossing accident] includes * * * the concept of stopping, looking and listening before entering on the tracks; it includes the concept of proceeding with care, the concept that decedent obeyed whatever warning signals were visible or audible, and that he moved within the proper speed limits. Every rule that one can conceive which is designed to preserve and protect human life is presumed to have been respected by the decedent." Keasey v. Pittsburgh & Lake Erie R.R. Co., 404 Pa. 63, 170 A.2d 328 [1961].

 At the pretrial conference it was established that the plaintiff has no evidence of any physical condition of the grade crossing which contributed to plaintiff's stopping or stalling on the tracks, no evidence that the lights of the locomotive were not lit, nor that the whistle was not blowing, nor its bell not ringing, nor that the crossing lights at the street crossing were not operating. There is no evidence that the train was operating at any different or unusual speed than its regular time table speed for passing through the town of Greenville.

 Defendant has moved for summary judgment on the grounds that the pleadings, the interrogatories, the depositions of all known witnesses, and the pretrial record shows that there is no evidence of negligence on the part of the defendant and further that such evidence reveals that the plaintiff was guilty of contributory negligence as a matter of law.

 Plaintiff argues that she should not be bound by the testimony of the only eyewitnesses since they are employees of defendant railroad and that their credibility should remain a question for the jury. Plaintiff further argues that a variance between the estimates of the witnesses of the distance within which the train was finally stopped raises an inference for the jury's consideration that the train crew did not act quickly enough to apply the brakes after seeing the plaintiff's automobile in a position of peril and thus were guilty of negligence or even wanton negligence.

 Even if the plaintiff would not be bound by the testimony of an employee of the railroad called in the plaintiff's own case, Johnson v. Baltimore & O.R.R. Co., 208 F.2d 633 [3d Cir., 1953], nevertheless, the witnesses in question are the only witnesses by which plaintiff can establish a prima facie case and furthermore the testimony of these witnesses as recorded in their depositions stands uncontradicted by any evidence which the plaintiff can offer.

 While plaintiff argues that he is not bound by the testimony of the defendant railroad's employees, even though he calls them as his own witnesses, this is not a complete statement of the law as we understand it. A party is bound by the testimony of his own witnesses where it is not contradicted or impeached by other evidence. Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 [1965]. He may explain it or contradict it in the interest of truth. In re Komfo Products Corp., 247 F. Supp. 229 [E.D.Pa., 1965]. He may modify expert opinion with the qualifications placed thereon by another expert. Kendrick v. Piper Aircraft Corp., 265 F.2d 482 [3rd Cir., 1959]. In Johnson v. Baltimore & O.R.R. Co., cit. supra, in discussing the many illogical applications of the strict rule, Judge Goodrich cited with approval the proposed Model Code of Evidence of the American Law Institute, Rule 106:

"For the purpose of impairing or supporting the credibility of a witness, any party including the party calling him may examine him and introduce extrinsic evidence concerning any conduct by him and any other matter relevant upon the issue of his credibility as a witness."

 In this case plaintiff must rely upon the only witnesses to the accident to prove a prima facie case. Plaintiff has no other evidence to contradict their testimony.

"Plaintiff has the burden of establishing his case by direct or circumstantial evidence; that burden is not met by pointing to the fact that all the available witnesses are hostile and will not testify in a manner which would support the complaint." Eckenrode v. Pennsylvania R.R. Co., 164 F.2d 996, p. 999, f.n. 8 [3rd Cir., 1946].

 Despite the admitted lack of evidence of defendant's negligence, Plaintiff argues that he is entitled to have the issue of the witnesses' credibility submitted to the jury in the light of the deposition testimony of one witness that he estimated the actual stopping distance of the train greatly in excess of that of the other witnesses. Plaintiff argues from this that a permissible inference arises that the brakes were not applied in time, or perhaps not even until the collision. Even with such an inference we cannot see how the plaintiff can prevail, because there is no evidence that application of ...

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