should have been protected by a gate and a bell, in addition to the red flashing lights, because it was a very busy crossing in terms of both vehicular traffic and railroad activity; because visibility was restricted by the apartment house, fence, tree, shrubbery, and the steep grade, requiring drivers to put themselves in a position of peril in order to see down the track; because the flashing lights could be washed out by morning sunlight and could be needlessly and prematurely activated by a freight car on the Philadelphia Electric spur; and because the whistles of two trains crossing at the same time were indistinguishable. In plaintiff's view, the railroad knew or should have known of all the above dangerous conditions. Secondly, plaintiff contends that defendant was negligent by operating the train at excessive speed as evidenced by the fact that it took the train 290 feet to stop after the point of impact.
Defendant's countervailing contentions can be very simply stated. First, it contended that the crossing was adequately protected by red flashing lights, which were functioning at the time of the accident. It views the contentions of the washing out of the warning lights by sunlight, their premature activation by virtue of the nearby spur, and the indistinguishability of the whistles, as either frivolous, unproved, contradicted by other evidence, or not tantamount to negligence. As to the operation of the train, it points to the engineer's testimony that the train was being operated at the proper speed, that the whistle was sounded at the prescribed time and in the correct manner and was sounded continuously up to the point of impact, and that he made routine service brake applications at the required points and put the train into emergency stop as soon as the truck started to cross the tracks. It concludes that Mr. Smith's testimony to the effect that, as decedent started and proceeded to cross the tracks, he was looking straight ahead and did not turn his head to the left to see if there was an oncoming train is dispositive on the issue of contributory negligence, constituting affirmative evidence overcoming the presumption of due care.
The testimony in the case, as summarized above, presented a classic jury question and we would have been unjustified in removing any aspect of the case from the jury's consideration. There was evidence that the railroad failed to make the crossing as safe as it might have, but it was for the jury to say whether that failure amounted to negligence. The jury could have found that the crossing was adequately guarded by lights and whistles and that the railroad exercised reasonable care. There was evidence that the decedent was careless and evidence that he was not. The resourcefulness, skill, and ingenuity that plaintiff's counsel exercised in attempting to circumvent the damaging evidence of contributory negligence was uncanny; however, that evidence required that the issue of contributory negligence be submitted to the jury, and the jury's resolution of that issue adversely to plaintiff could be sustained simply on the strength of the evidence that the decedent drove onto the tracks while the lights were flashing and the oncoming train was sounding its whistle. Indeed, contributory negligence was the one issue we might well have taken from the jury by way of a directed verdict for the defendant, not the plaintiff. A discussion of the law in that regard will be instructive.
The law of Pennsylvania is that a motorist must not only stop, look, and listen before entering a crossing, but also continue to look and listen as he is crossing the tracks, and failure to do either is contributory negligence as a matter of law, if proximate cause is satisfied. Witkowski v. Lehigh Valley R.R., 338 Pa. 510, 12 A. 2d 908 (1940); Riesberg v. Pittsburgh & L.E.R.R., 407 Pa. 434, 180 A. 2d 575 (1962); Baltimore & O.R.R. v. Muldoon, 102 F.2d 151 (3d Cir. 1939). As was noted in Baltimore & O.R.R. v. Muldoon, supra :
No principle is more firmly imbedded in the law of Pennsylvania than that a traveler who is about to cross a railroad track must stop, look and listen. This is an absolute and unbending rule of law. The stopping, looking and listening must not be merely nominal or perfunctory but substantial, careful, and adapted in good faith for the accomplishment of the end in view. Failure to comply with the duty is not merely evidence of negligence but is negligence per se, and is to be declared such by the court.
102 F.2d 152. Moreover, failure to stop, look, and listen is not excused by obstruction of view. Benner v. Philadelphia & R. Ry., 262 Pa. 307, 105 A. 283 (1918); 31 P.L.E. Railroads § 184 & cases cited at n. 53.
In this case plaintiff had the benefit of the rebuttable presumption of due care on the part of the decedent. Pieseski v. Baltimore & O.R.R., 393 F.2d 900 (3d Cir. 1968). The presumption was rebutted, however, by direct evidence that the decedent did not continue to look down the track as he crossed it.
In addition, the "uncontrovertible physical fact," see id. at 903, that decedent drove onto the track in front of the train is circumstantial evidence that he was careless in failing to heed the flashing lights and the train's whistle, and the jury could have so found.
In Burkman v. Anderson, 324 Pa. 206, 188 A. 287 (1936), the court found the motorist guilty of contributory negligence as a matter of law where he had driven onto the track despite flashing red warning lights and a ringing crossing bell. While on the strength of Burkman we might have directed a verdict for defendant, we preferred to let the jury consider the contention that decedent was still not negligent because the lights were imperceptible and the train whistles indistinguishable.
We turn next to plaintiff's contention that we erred in our charge to the jury on the defendant's duty of care. Our charge to the jury on defendant's duty to maintain its grade crossing was as follows:
Now, it is the duty of a railroad, members of the jury, to exercise ordinary care under the circumstances to warn motorists of the approach of trains at a crossing by adopting a reasonably effective method commensurate with the danger at the crossing. What constitutes a reasonable and timely warning depends on the surrounding circumstances shown by the evidence of the case, such as the amount and character of the vehicular and other travel over the crossing; the extent and character of train movement; the control and speed of trains; and the character of a highway and the crossing itself -- those many factors that are on the blackboard there that you heard so much testimony and so much argument about.