Killen v. Pennsylvania R. Co.

• Decision Date: 27 October 1948
• Citation: 376 Pa. 320,102 A.2d 140
• Parties: KILLEN v. PENNSYLVANIA R. CO. et al. MILLER v. PENNSYLVANIA R. CO. et al. . Bruce R. Martin, Dalzell, Pringle, Bredin & Martin, Pittsburgh, for appellants. Jos. F. Weis, Joseph F. Weis, Jr., Sherriff, Lindsay, Weis & McGinnis, E. V. Buckley, Mercer & Buckley, Pittsburgh, for appellee. Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ. BELL, Justice. Each of the judgments is affirmed on the following opinion of Judge O'Brien, speaking for the Court en banc. 'Lloyd K. Killen and Mack E. Miller, while in the course of their employment as employees of the United States Postal Service, were riding in a postal mail car on defendant's train in the vicinity of Uhrichsville, Ohio, on the morning of
• Court: Pennsylvania Supreme Court

Page 140

102 A.2d 140

376 Pa. 320

KILLEN v. PENNSYLVANIA R. CO. et al.

MILLER v. PENNSYLVANIA R. CO. et al.

Supreme Court of Pennsylvania.

Bruce R. Martin, Dalzell, Pringle, Bredin & Martin, Pittsburgh, for appellants.

Jos. F. Weis, Joseph F. Weis, Jr., Sherriff, Lindsay, Weis & McGinnis, E. V. Buckley, Mercer & Buckley, Pittsburgh, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL, Justice.

Each of the judgments is affirmed on the following opinion of Judge O'Brien, speaking for the Court en banc.

'Lloyd K. Killen and Mack E. Miller, while in the course of their employment as employees of the United States Postal Service, were riding in a postal mail car on defendant's train in the vicinity of Uhrichsville, Ohio, on the morning of October 27, 1948. The plaintiffs were paying passengers of the defendant railroad company. The plaintiffs sued the Pennsylvania Railroad Company for injuries sustained when the train collided with a truck, heavily laden with steel at Wolf's Crossing. The Railroad Company brought in the additional defendants.

'The case of Mack E. Miller against the Railroad Company and the additional defendants was tried previously, resulting in a verdict against the Railroad Company alone. In that action the Railroad Company moved for judgment n.o.v. and for a new trial. When both motions were refused by the court below, the Railroad Company took an appeal to the Supreme Court (Miller v. Pennsylvania Railroad Company, 368 Pa. 507 ) where judgment n.o.v. was refused but a new trial was granted to all the parties. In refusing judgment n.o.v. the Supreme Court said [368 Pa.] at pages 512, 513 : '* * * But the question still remains--considering the fog and the position of the truck when the flasher lights went on, was the defendant's warning timely and sufficient?

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"* * * If plaintiff's evidence clearly showed that the truck driver saw the flasher lights and ignored them, the Railroad would have given timely and sufficient warning of the train's approach, the negligence of the truck driver would have been the proximate cause of the accident, and the Railroad Company would be entitled to a judgment n.o.v. The evidence on this point was confused, but we believe was sufficient to allow the jury to legitimately infer that the flasher lights could not have been seen by the truck driver; and therefore the court below properly refused defendant's motion for judgment non obstante veredicto.'

'The Miller case was consolidated with the Killen case and both were tried before O'Brien, J. and a jury, resulting in verdicts for the plaintiffs against all of the defendants. The defendants filed motions for judgment n.o.v. and that matter is now before the court.

'We are bound in the consideration of such motions of the defendants for judgment n.o.v. to consider the testimony in the light most advantageous to the plaintiffs and resolving in their favor all doubts and conflicts. Miller v. Hickey, 368 Pa. 317 ; McDonald v. Ferrebee, 366 Pa. 543 .

'The jury could have found, considering the testimony in the light most favorable to the plaintiff, the following facts: Shortly before the accident a bus traveling on U. S. Highway Route 36 in the westerly outskirts in the town of Uhrichsville, Ohio, came up behind a truck of the defendants' in a thick [very dense] fog and followed it for a distance of two to three miles at a speed of ten to twenty miles an hour until it approached Wolf's Crossing. The highway at this point runs north and south and the railroad east and west. The highway and the railroad meet at an angle of 24 degrees 30 minutes. There are two railroad tracks and the eastbound train was on the second or southerly track. The truck flashed the rear marker lights signaling stop and did stop at a point before entering the tracks beyond the point of the flasher lights, at which time the flasher lights began to operate. The driver of the truck looked both ways and started the truck proceeding in creeper gear. The train was being operated at a speed of 70 to 75 miles an hour and activated the flasher lights at a distance 3510 feet from the crossing. The truck proceeded over the crossing and when at a point on the east-bound southern track was struck by the train causing a blinding flash. No bell or whistle or any warning device was given by the train prior to the collision. The area was blanketed by a thick fog. The distance from the flasher signal on the north side of the crossing to the east bound track is a distance of 71 feet. The usual speed of the train at this point was 60 miles an hour. The red flasher lights were 21 candle power and the headlight of the locomotive was 550,000 candle power. The locomotive headlight could be seen when it was a distance of about 75 feet from the crossing. The jury could have found from all the evidence that the driver of the truck had passed the first flashing signal before it commenced to flash. There was no evidence why the truck driver could not see the flashing signal on the other side of the tracks. There is no question of contributory negligence involved in these cases.

'There were two eye witnesses to this collision, Arlow K. Lewis and Lewis H. Rooks. Mr. Lewis was a bus driver for the Pennsylvania-Greyhound lines operating a bus on a run from Pittsburgh, Pennsylvania to Columbus, Ohio through Uhrichsville, Ohio, a town two and one-half or three miles from Wolf's Crossing. He testified that when he was leaving the western city limits of Uhrichsville he saw a truck loaded with steel. He drove behind it going about 10 to 20 miles per hour through a dense thick fog. The lights were on the bus and the truck as both proceeded on Route 36. When he came up to the crossing the flasher lights were working, and the truck driver, at about the same instant, flashed his marker lights indicating he was going to stop. The truck made a dead stop. Mr. Lewis could see the driver in the cab looking both ways and then proceed across the track when a blinding flash occurred. * * *

"* * *

"Q. About how far were you from the track where the train came at the time that this signal went on? * * * A. I figure I was back 150 feet from the crossing, the nearest rail to me approximately 150 feet. That would be the north bound rail. I figure that is about how far I was back. * * *

"Q. Now, Mr. Lewis, can you tell us whether that truck when it stopped was between you and the flasher lights or not? A. I don't know whether it was between me and the flasher lights or not?

"Q. Can you tell whether that truck when it stopped was short of the railroad tracks or was on the railroad tracks? A. I said it was somewhere short of the tracks between me and the railroad tracks.' * * * "Q. Mr. Lewis, when your bus was brought to a stop and the truck stopped you weren't able to tell whether the cab of the tractor had passed the flasher lights or not, were you? A. No. I don't know where his cab was with respect to that. * * *

"Q. How much distance did you say was between the front of your bus and the rear of the trailer when you were both stopped? A. Well, I estimated about 32 to 35 feet, a bus length.

"Q. Didn't you at the previous trial of this case testify as follows: wasn't the following question asked you and didn't you make this answer: 'Q. About how far would you say, Mr. Lewis, that you were from the track that the train was on at the time you came to a stop? A. Approximately 125 feet. Q. About how far in front of you was the truck when you came to a stop there? A. Oh, I would say about 75 feet to 100. Q. About 75 feet to 100 in front of you? A. Yes. Q. Did it stop? Which stopped first, the truck or your car? A. I would say we both stopped momentarily, about the same time.' Did you testify to that effect in the prior trial?

"A. I can't remember, but if I did I just gave them as estimates.

"Q. Would you say that that testimony that you gave at the former trial, is that a correct statement? A. Approximately the feet I gave is about right, yes.'

"Mr. Rooks was a student bus driver seated behind the driver, Mr. Lewis. His testimony was substantially the same as Mr. Lewis's. When Mr. Rooks was asked how far the back of the truck was to the bus when the bus blinked its lights, he stated:

"A. I would estimate two bus lengths, about 75 feet. * * *

"Q. It could have been a little less, might have been 100 feet, is that correct? A. Yes.

"Q. What would be your best estimate as to how close the front of the truck was [to the closest rail] at the time that you thought it was either stopped or close to stopped? A. My best estimate, ten feet.' * * *

"Q. * * * So that when you saw him blink his marker lights your bus was 150 to 175 feet, around in there, away from the flasher signals, is that right? A. Yes, sir.'

'Mr. Weis, on cross-examination, asked:

"Q. You weren't able to fix an exact position of the front of that truck at the time you saw the flasher lights? A. No.

"Q. And from where you sat you don't know when you first saw the flasher lights whether the cab of that truck had already passed the flasher light pole or not? A. No, sir.'

'Witnesses called by the defendants testified that they heard the train whistle. Witnesses for the plaintiff testified that they did not hear any train whistle. Mr. Thaddeus J. Tomalewski, a postal clerk riding in the same car as the plaintiffs, testified in behalf of the plaintiffs that he was listening for the train whistle as he used Wolf's Crossing to determine whether he could lock out his mail sacks or whether he would require assistance to get them ready for Dennison which was four or five miles from Wolf's Crossing. He testified that a train whistle did not blow for at least an interval approximately five minutes before the accident. His testimony was sufficient if believed by the jury to determine that no whistle was blowing. Kindt v. Reading Co., 352 Pa. 419 [43 A.2d 145, 162...