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March 22, 1973

Noreen A. McGLINCHEY, Administratrix of the Estate of William Swank, Deceased,
George Pierce BAKER et al.

Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 This is a wrongful death and survival action arising out of a grade crossing accident in Morton, Pennsylvania in which a milk truck driven by plaintiff's decedent was struck by the defendant's passenger train. *fn1" Both negligence and contributory negligence were in issue. The jury returned a verdict for the defendant; before us are the plaintiff's motions for judgment n.o.v. and for a new trial. *fn2" The motion for judgment n.o.v. contends that under all the evidence, we should have granted plaintiff a directed verdict. *fn3" The motion for a new trial is bottomed upon the allegations that the verdict was contrary to the weight of the evidence and that we erred in our charge to the jury on the standard of care owed the plaintiff. *fn4" We shall first discuss the plaintiff's contentions stemming from her evaluation of the evidence, and shall then turn to her contentions about the charge. For reasons which will appear, the motions will be denied.

 Although the trial abounded with conflicting contentions, there was, in retrospect, surprisingly little dispute about the facts. For purposes of the motion for judgment n.o.v., we must determine whether, viewing the evidence in the light most favorable to the defendant, and without weighing the credibility of the witnesses, the only reasonable conclusion as to the verdict was that the plaintiff must prevail. Neville Chem. Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.), cert. denied, 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55 (1970); Woods v. National Life & Accident Ins. Co., 347 F.2d 760 (3d Cir. 1965). On the motion for new trial, we have broad discretion to grant the motion if the jury charge was erroneous, but in considering the weight of the evidence argument, we must decide "whether sufficient evidence existed on the record which, if accepted by the jury, could sustain the verdict." Any stricter standard would tend to deprive litigants of their right to have factual issues determined by the jury. We should be particularly careful not to substitute our judgment for that of the jury in a case such as this where the subject of the testimony was relatively familiar and simple and well within the comprehension of the ordinary juror. Hourston v. Harvlan, Inc., 457 F.2d 1105 (3d Cir. 1972).

 The condition of the crossing was one of the principal bases of plaintiff's contention of negligence. *fn5" From where decedent was stopped, the view to his left (of the Philadelphia-bound train) was obscured by several obstacles to vision: an apartment house, a fence, a tree, and some shrubbery. Accordingly, a northbound motorist in decedent's position would have to drive very close to the track to see a Philadelphia-bound train coming from the left. And there was evidence that even from a position very close to the track, the view of the track to the west was only about 200 feet. Moreover, the roadway just south of the tracks was on a steep uphill grade, reducing visibility and increasing the difficulty of vehicle control. There was also evidence that the crossing was heavily traveled both by motor vehicles (3000 to 5000 daily) and trains (72 daily). Plaintiff relied on these facts to argue that the crossing should have been guarded by gates.

 On the morning of the accident, as decedent was stopped at the crossing, a Media-bound train passed in front from his right to his left. At the same time, a Philadelphia-bound train was approaching from decedent's left, sounding its whistle. However, as soon as the Media-bound train had cleared the crossing, decedent started his truck across the tracks. Although the Philadelphia-bound train's whistle was sounding and continued to sound up until the collision, decedent did not stop, and the Philadelphia-bound train struck decedent's vehicle and dragged it some 100 feet. The train itself traveled an additional 190 feet before it stopped. Decedent was thrown out of the vehicle, suffering fatal injuries.

 The engineer of the train, Mr. Ryan, testified for defendant. Inter alia, he testified that: (1) the train's brakes were in good condition, having been tested just prior to the run and having performed normally when applied earlier in the run; (2) the speed limit at the crossing was 25 miles per hour; (3) the train was moving at about 20 m.p.h. approaching the crossing; (4) the train's whistle was blown at the whistle posts west of the crossing, and in the required manner; (5) appropriate service applications of the brake were made to slow the train as it approached the crossing; (6) when he first saw the truck it was stopped 13 feet from the tracks; (7) the truck then started to cross the tracks; (8) the decedent was looking straight ahead until the last instant, when he turned and saw the train; (9) the train's headlight was burning brightly; (10) the crossing flasher lights were operating (they are visible from the track); (11) he placed the train in emergency as soon as he saw the truck coming across the tracks, but the train could not stop in time; and (12) the train was traveling at about 20 m.p.h. at the point of impact.

Q. When you first -- were you in a position to be able to see the face of the driver of the milk truck?
A. No, I didn't see his face.
Q. Could you see any part of his body as you looked across the tracks?
A. Right. I could see the left side of him.
Q. Were you in a position to determine the direction his body was ...

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