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December 3, 1970

Doris J. STURDEVANT, Administratrix of the Estate of Clyde D. Sturdevant, Plaintiff,

Weber, District Judge.

The opinion of the court was delivered by: WEBER

This is a diversity negligence action controlled by Pennsylvania law. Plaintiff's decedent met his death in a collision between an automobile which he was driving and defendant's train at a grade crossing near Lottsville, Warren County, Pennsylvania. The highway, running north and south, crosses two sets of tracks at approximately right angles. These tracks are approximately eighty feet apart. Going north as he was proceeding the driver would first come upon a crossbuck railroad warning sign which warned of the crossing and additionally of "two sets of tracks", at the side of the road to his right. Directly thereafter he would pass the first set of tracks which was a side-track or "town track" which cut off from the main track some distance to the east of the highway and went westward across the highway into a feed mill located along the west side of the highway at this point From the first set of tracks described the highway rises at an approximately eight percent grade for about eighty feet to a crest where it crosses the main line track of defendant railroad. Beyond the main line track to the north was another crossbuck railroad warning sign on the west side of the highway to warn south-bound traffic of the crossing.

 Plaintiff argues that the position of these two warning signs at the extreme outer borders of both sets of tracks and approximately one hundred feet apart establish this area as a single railroad "crossing" with consequent duties upon the parties in relation thereto.

 The weather was foggy, it was breaking daylight, the driver's headlights were on, and the driver had traversed this crossing almost daily for two or three weeks prior thereto. The defendant's train was approaching from the west, its headlight was on and its diesel horn was sounded on approaching the crossing. The engineer of defendant's train observed the lights of the automobile as it passed behind the feed mill when the train was about one thousand feet from the crossing. There is no evidence as to whether the driver stopped before crossing the side track but he continued to approach the main track at a low rate of speed and appeared to be slowing down. The car did not stop and was struck in the front by the train immediately upon entering upon the main line track.

 The jury returned a verdict for the defendant railroad and plaintiff has moved for a new trial citing errors in the court's charge.

 The principal argument directed against our charge with respect to the question of decedent's contributory negligence concerns whether this is a multitrack crossing where the strict rule of Stop, Look and Listen at each track is modified.

 Plaintiff argues that the Stop, Look and Listen rule is applied to a "crossing"; that the driver must stop before entering a "crossing" as that word is employed in Tomasek v. Monongahela Rwy. Co., 427 Pa. 371, 235 A. 2d 359 [1967], but that once having entered upon a multi-track crossing the decedent had no affirmative duty to stop a second time. In the Tomasek case the court uses the word "crossing" throughout, but the opinion indicates that only one set of tracks is involved.

"But, having once stopped in the exercise of reasonable care before entering upon the crossing, he was not bound, as a matter of law, to stop again on or between the tracks to look and listen." (emphasis by the Court). Baker v. Pennsylvania R.R. Co., 369 Pa. 413, 420, 85 A. 2d 416, 419 [1952].

 This court charged, more than once, that a person must stop, look and listen before crossing any track, and that this rule applied to both the town-line and the main track in this case. The court then instructed the jury that there was a qualification to this rule where a multiple track crossing was involved, in that a party need not stop for each track but must continue to look and listen but must continue ahead until all the tracks were cleared.

 The court then left the question of reasonable care under the circumstances to the jury as to whether the decedent should have proceeded ahead until he cleared the crossing or whether he was required to stop again before crossing the main track.

 We have no definition of what constitutes a multi-track crossing as distinguished from two separate but neighboring crossings. The railroad witnesses considered this area as one crossing. To satisfy the Pennsylvania Public Utility Commission's requirements of crossing protection a crossbuck warning sign was erected on the right hand side of the extreme southern boundary of the area, and another crossbuck sign facing south-bound traffic was located at the extreme northern end. These signs are approximately one hundred feet apart, and the space between the side track and the main track has been estimated as approximately eighty feet.

 Because the Stop, Look and Listen rule is a rule of judicial derivation we can only say that it presents a standard of reasonable care and therefore it is properly a question for the jury whether this separation of the tracks required a reasonable driver, in the exercise of due care, to stop, look and listen a second time.

 In applying the Stop, Look and Listen rule where more than one track is to be crossed, the most explicit ...

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