Robert R. Reeder, Dennis J. O'Leary, J. V. Pinto, Philadelphia, for appellant.
Soren P. West, James F. Heinly, Lancaster, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result.
[ 242 Pa. Super. Page 212]
A set of railroad tracks intersects Route 322 at what is known as the Rocklyn Crossing, in Honeybrook, Township, Chester County. The tracks run north-south while Route 322 runs east-west. On the morning of October 2, 1963, a train owned and operated by appellant Reading Company, en route from Reading, Pennsylvania to Wilmington, Delaware, was proceeding south toward the intersection. At the same time, a tractor-trailer driven by
[ 242 Pa. Super. Page 213]
appellee's decedent, Lawrence Evans, was proceeding east toward the intersection on Route 322. The train reached the intersection only moments before the truck, precipitating the accident which cost Mr. Evans his life.
At the time of the collision, the train was moving at a speed of between 22 and 23 miles per hour, while the truck's speed was variously estimated to have been between 35 and 45 miles per hour. The evidence supports no other conclusion than that neither Mr. Evans nor the train engineer ever attempted to stop their respective vehicles. The force of the collision overturned two diesel engines and derailed five of the forty freight cars.
Appellee Anna Mae Evans, administratrix of the estate of Mr. Evans, filed wrongful death and survival actions against appellant. In addition, appellee Soren P. West, administrator of the estate of Albert Kresge (the decedent's employer), filed an action in trespass against appellant to recover damages for the destruction of the truck and its contents. Appellant filed suit against both appellees to recover for the damages to the train and tracks.
After trial, a jury returned a verdict in favor of appellee Evans in the amount of $150,000.00 and in favor of appellee West for $5,800.00. From the lower court's denial of motions for judgments N.O.V. and for a new trial, appellant appeals. We must reverse and remand for a new trial.
Appellant first alleges that it is entitled to judgments N.O.V. because the evidence established that the decedent violated the so-called "stop, look, and listen" rule, a well established corollary of the doctrine of contributory negligence in Pennsylvania. The stop, look, and listen rule states that as a matter of law, a reasonably prudent person will stop, look, and listen to ascertain that no trains are approaching before venturing across a railroad track. As a matter of law, one who fails to
[ 242 Pa. Super. Page 214]
perform this duty to himself is guilty of negligence. Tomasek v. Monongahela Ry., 427 Pa. 371, 235 A.2d 359 (1967); Riesburg v. Pittsburgh & L.E.R.R., 407 Pa. 434, 180 A.2d 575 (1962); Ramsey ...