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filed: October 5, 1979.


No. 2932 October Term, 1978, Appeal from the Judgment of the Court of Common Pleas of Philadelphia County at July Term, 1970, No. 2749.


Jan E. DuBois, Philadelphia, for appellant.

Jeffrey M. Stopford, Philadelphia, for appellee.

Wieand, Robinson and Louik, JJ.*fn* Wieand, J., concurs in the result.

Author: Robinson

[ 271 Pa. Super. Page 40]

This is an action brought by the appellee, Yvonne R. Buchecker, Administratrix of the Estate of Eugene T. Buchecker, deceased, under the wrongful death and survival statutes to recover for the death of her husband, who was killed in a collision with a train of the appellant railroad at a grade crossing on State Highway Route 309. After a trial, the jury returned a verdict in favor of the appellee for $95,000.00 in the wrongful death case and for $405,000.00 in the survival action. The lower court denied appellant's post trial motions for a judgment n. o. v. and for a new trial and the appellant appealed.

Viewing the evidence in a light most favorable to the verdict-winner, as we are required to do, Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968); Kaminski v. Grassi, 237 Pa. Super. 478, 352 A.2d 80 (1975), the following facts appear:

[ 271 Pa. Super. Page 41]

The grade crossing accident in which appellee's decedent was killed, occurred on Wednesday, February 4, 1970 on State Highway Route 309, approximately three miles north of the City of Allentown where a single track of the appellant railroad crosses the highway. Route 309 is a major four lane highway running in a north-south direction; appellant's single track freight line runs in an east-west direction. The collision took place at approximately 7:57 A.M. o'clock during the morning "rush hour"; traffic was heavy as it usually is at this time. Appellee's decedent was on his way to work in Allentown and was driving on the southbound lanes; the train was proceeding in an easterly direction. The posted speed limit of Route 309 at the point was 60 miles per hour.

At the time of the impact the decedent was alone in his car and was driving in the left southbound lane at 40 miles per hour; appellant's train was travelling at 29 miles per hour. The front left of appellant's engine hit the right front of decedent's automobile and carried it 900 feet east of the area of impact. A car operated by one Nancy Horne Chetry proceeding in the right southbound lane parallel to decedent's vehicle and slightly ahead of it was also struck by the engine.

The only warning devices for vehicles in southbound traffic connected with the crossing were a state highway sign marked "R.R.", 220 feet north of the tracks; a cantilever extending from a pole at the side of the highway over the same on which were mounted flashing red lights furnished by 18 and 10 watt bulbs; a crossbuck fastened on the side pole with the words, "Railroad Crossing" and another sign also fastened to the side pole stating, "Stop on Red Signal". The flashing red lights, if functioning correctly, were designed to activate by relay mechanisms when tripped by an eastbound train 1,150 feet from the crossing.

The railroad tracks as it came eastward to the southbound lanes of Route 309 proceeded through a deep earthen cut and large embankments bordered the tracks on both sides. The embankment on the north side of the tracks obstructed all views of rail traffic by motorists approaching the crossing

[ 271 Pa. Super. Page 42]

    in the southbound lanes of Route 309. The police officer in charge of the investigation of the accident estimated the height of the north embankment at 10 feet; appellant's claim adjuster measured it west of the crossing along the tracks at 8 feet, 3 inches.

A southbound vehicle operator on Route 309 could not have a clear view of the tracks westerly until the front bumper of his vehicle was three feet from the north rail. With the bumper 7 feet, 8 inches north of the tracks, the driver would be 16 feet, 3 inches and would have an unobstructed view westerly for sixty feet. The overhang of the train engine and cars, is two feet, six inches. To have an unobstructed view of the eastbound tracks at the crossing, a motorist would have to stop his car six inches north of the overhang of the oncoming train; to stop five feet north of the oncoming train, the motorist would have an unobstructed view of only sixty feet. Expert testimony in the case established that a vehicle moves 1 1/2 feet per second for every mile per hour of speed. Thus a southbound motorist at 40 miles per hour would travel that five feet in 1/2 of a second.

Nancy Horne Chetry, a driver on the southbound lane, hereinbefore referred to, stated that she traversed the crossing 500 times a year, for four years and never saw a train. She said the morning sun was in the center of the highway just above the horizon. Mrs. Chetry testified that the bright light "sort of distorted your vision"; "it wasn't that you couldn't see, but it was like the sun distorted it." The witness approached the crossing in the rightbound lane going 40 miles per hour. Decedent's car was slightly behind her in the left lane. Several vehicles were in front of Mrs. Chetry and none slowed, braked or stopped at the crossing. Mrs. Chetry stated that she saw nothing, neither train or flashing lights and heard nothing until the train whistle sounded at the instant she was struck in the rear, spinning her vehicle into the northbound lane.

Frank Stearn was driving south ahead of Mrs. Chetry, said he only saw a train on the crossing once or twice a year.

[ 271 Pa. Super. Page 43]

Stearn's radio was off, he had no hearing problem, his window was open and he heard no sound until the blast of a train whistle just as he passed over the tracks. He observed the collision of the train with Mrs. Chetry's Volkswagon in his rear view mirror. Before this day he had observed flashing lights at the crossing, but they did not flash on this day of the accident. He stated, "I firmly believe the light was not on. No one can convince me that light was flashing."

Randy Diefenderfer, a motorist on the northbound lane, said he saw flashing signals from a hill one-quarter of a mile south of the crossing. His radio was not working, his hearing was unimpaired and his left window was "cracked open", and he heard no sound from the train until he stopped 50 feet from the tracks. Mr. Diefenderfer said he could not see the train until it actually entered the intersection.

Appellant contends that it is entitled to a judgment n. o. v. (a) because the trial judge refused to apply the stop, look and listen rule to the case, and (b) that there was no evidence to support the verdict against the appellant.

Appellant also contends that it is entitled to a new trial, (a) because the trial judge refused to instruct the jurors on the stop, look and listen rule and read appellant's points for charge on the subject, nos. 13, 14, 15, 17, 18, 20, 21, 27, and 33 to the jury; (b) the trial judge failed to apply the 20 mile speed limit imposed by the Vehicle Code, 75 P.S. 1002(b)(3), and instruct the jury thereon; (c) the trial judge erred in instructing the jury on the sudden emergency rule; (d) the trial judge erred in refusing points for charge relating to impairment of vision; (e) the trial erred in permitting evidence relating to different safety precautions in effect at other crossings; and (f) that the verdict was excessive and the jury disregarded the instructions on the survival and wrongful death statutes.

Motion for Judgment N.O.V.

Appellant relies heavily upon the rule that requires a motorist to stop, look, and listen before entering upon a

[ 271 Pa. Super. Page 44]

    railroad crossing. A failure to comply with the rule constitutes contributory negligence. See Tomasek v. Monongahela Rwy. Co., 427 Pa. 371, 235 A.2d 359 (1967); Riesburg v. Pittsburgh and L. E. R. R. Co., 407 Pa. 434; 180 A.2d 575 (1962); Ramsey v. Baltimore and Ohio R. R., 336 Pa. 468, 9 A.2d 348 (1969). It is undisputed that appellee's decedent did not stop before entering the crossing. Appellant contends that decedent was therefore negligent as a matter of law that recovery is precluded. Under our case law, the driver of a motor vehicle must stop, look and listen before entering on a railroad crossing. Riesburg v. Pittsburgh & Lake Erie Railroad, 407 Pa. 434, 180 A.2d 575 (1962). Geelen v. Penna. R. R. Co., 400 Pa. 240, 161 A.2d 595 (1960), and he must continue to look and listen until he has passed over the crossing. Kolich v. Monongahela Rwy. Co., 303 Pa. 463, 154 A. 705 (1931). A failure to do so constitutes contributory negligence as a matter of law, Tomasek v. Monongahela Rwy. Co., (supra). Where the driver of a motor vehicle is killed at a railroad crossing, a presumption arises that he exercised due care and did stop before committing himself to the crossing, but this presumption is rebuttable. See Tomasek v. Monongahela Rwy. Co., (supra). The older cases support the appellant's position here.

However, it is clear that in recent years, our appellate courts, as the opinion of the lower court reminds, "have moved away from the absolutist posture that characterized" the former application of the rule.

The most recent decision on the stop, look, and listen rule is Evans v. Reading Co., 242 Pa. Super. 209, 363 A.2d 1234 (1976). The facts in that case are somewhat similar to those here. The decedent in Evans did not stop his truck before driving on the railroad tracks. A crossbuck and flashing signals preceded the crossing. Employees of the railroad testified that the train's whistle and bells were sounded in advance of the crossing and that the warning lights were working at the time of impact. For the ...

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