Appeal from order of Court of Common Pleas of Luzerne County, Dec. T., 1966, No. 2132, in case of William J. Reynolds and Edith E. Reynolds, his wife, v. Central Railroad Company of New Jersey, and Lehigh Valley Railroad Company.
Richard M. Goldberg, with him George A. Spohrer, and Hourigan, Kluger & Spohrer, for appellants.
Walter L. Hill, Jr., and Joseph F. Gallagher, with them Warren, Hill, Henkelman & McMenamin, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino.
An automobile driven by appellant, William J. Reynolds, traveling east on a dirt roadway, was struck by a southbound freight train owned and operated by the defendant, Lehigh Valley Railroad Company. The accident occurred at the Reynolds Crossing owned and maintained by defendant, Central Railroad Company of New Jersey. Reynolds, injured and suffering traumatic amnesia, and his wife, sued the defendants. After the presentation of Reynolds' evidence, the trial court granted a compulsory non-suit because the incontrovertible physical facts in evidence conclusively established the contributory negligence of William J. Reynolds. The court en banc sustained the non-suit.
Reynolds, in appealing from the refusal of the lower courts to remove the non-suit, claims the jury should have decided the contributory negligence question because a conflict existed between the presumption of due care which benefits a plaintiff suffering traumatic amnesia about the accident and the incontrovertible physical
facts which show conclusively plaintiffs' contributory negligence.
Reynolds was entitled to the presumption of due care, but this does not prevent the incontrovertible physical facts rule from applying. The presumption of due care is conclusively rebutted when the evidence incontrovertibly reveals that Reynolds was contributorily negligent. Tomasek v. Monongahela Rwy Co., 427 Pa. 371, 235 A.2d 359 (1967). The incontrovertible physical facts rule can apply even if there is direct testimony that a plaintiff used due care at a crossing immediately prior to the accident. Hawk v. Pennsylvania R. Co., 307 Pa. 214, 160 A. 862 (1932). Garis v. Lehigh & N.E.R. Co., 324 Pa. 149, 188 A. 76 (1936). Brown, Pennsylvania Evidence 8 (1949). The rule applies in such circumstances because either the presumption or the testimony of due care is not rationally acceptable in view of the incontrovertible physical facts which reveal that the accident could not have occurred if the plaintiff exercised due care.
Considering Reynolds' evidence, the incontrovertible physical facts rule was properly applied. Reynolds presented testimony by an experienced investigator which demonstrated that Reynolds' vision to the left, as he approached the crossing in an easterly direction, was not obstructed at all times by the terrain of the land. Sight measurements were made by the witness who testified that one's vision of the railroad track to the north improved as one approached the track in an easterly direction. The witness stated that 90 feet of track was clearly visible from a point on the roadway 30 feet distant from the crossing. At a point 15 feet from the crossing, one had a view of the track to the left of 1,365 feet. At a point immediately before the crossing, 1,849 feet of straight track was clearly visible. Beyond the 1,849 feet, visibility was lost because the track
curved. Reynolds' evidence also included photographs showing views of the track from various points on the roadway. Under these circumstances, had the plaintiff ...