Miller v. Pennsylvania R. Co.

Decision Date13 November 1951
Citation368 Pa. 507,84 A.2d 200
PartiesMILLER v. PENNSYLVANIA R. CO.
CourtPennsylvania Supreme Court

Action by Mack E. Miller against The Pennsylvania Railroad Company a corporation, for injuries sustained by the plaintiff as a passenger when train collided with truck at grade crossing. The railroad joined as additional defendant Lattavo Brothers Inc., as owner of the truck, and Georgiana Karavanic administratrix of the estate of the deceased truck driver. The Court of Common Pleas of Allegheny County at No. 3537 January Term, 1949, Samuel A. Weiss, J., rendered judgment on verdict against The Pennsylvania Railroad Company and judgments on verdicts in favor of Lattavo Brothers, Inc. and in favor of Georgiana Karavanic, administratrix, and The Pennsylvania Railroad Company appealed. The Supreme Court, Nos. 168, 169, 170, March Term, 1951, Bell, J., held that, where passenger sued railroad and truck owner and administratrix of estate of deceased truck driver for injuries sustained when train collided with truck at grade crossing and verdict was found for truck owner and administratrix and against railroad, and instruction relating to negligence was prejudicial error as to railroad, new trial would be granted as to all the defendants so as to permit jury to determine the issue of fault.

Judgment reversed and new trial granted as to all the defendants.

Bruce R. Martin, Dalzell, McFall, Pringle & Bredin all of Pittsburgh, for appellant.

Jos. F. Weis and Sherriff, Lindsay, Weis & McGinnis, all of Pittsburgh, for Mark E. Miller and Lattavo Bros. Inc., appellee.

E. V. Buckley and Mercer & Buckley all of Pittsburgh, for Georgiana Karavanic, appellee.

Before DREW, C. J., and STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.

BELL Justice.

Plaintiff, an employee in a United States mail car, and by virtue thereof a paying passenger on a Pennsylvania passenger train, sued the Pennsylvania Railroad for injuries sustained when the train collided with a truck at a grade crossing near Uhrichsville, in the early morning of October 27, 1948. The Railroad Company brought in and joined as additional defendants the owner of the truck and the administratrix of the estate of the deceased truck driver.

The jury returned (a) a verdict for the plaintiff against the Pennsylvania Railroad Company in the sum of $16,000., which was reduced by remittitur to $8500., and (b) a verdict for the defendant truck owner, Lattavo Brothers, Inc., and for the defendant administratrix. The court en banc refused the railroad company's motion for a judgment n. o. v. and for a new trial; and from the entry of judgment on the verdict the Pennsylvania Railroad took this appeal.

In disposing of the motion of the defendant for judgment non obstante veredicto, we have considered the testimony, as we must, in the light most advantageous to the plaintiff, and resolved in his favor all doubts and conflicts therein: Miller v. Hickey, 368 Pa. 317, 81 A.2d 910; McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232.

Considering the testimony in the light most favorable to plaintiff, the jury could have found from the evidence the following facts: Prior to the accident, a bus was following defendant's truck (which was subsequently demolished) along highway Route 36, for about a mile and a half, during which time the truck was going at a speed of 10 or 15 miles an hour. There were two tracks of the Pennsylvania Railroad at Wolf's Crossing, where the accident happened. The train was approaching on the far track. At that time and place there was a thick fog. Red flasher lights were flashing on each side of the tracks . The flasher signals were started by a railway device when the first wheels of a train passed over the relay which actuates the flasher lights approximately 3500 feet from the crossing. On the side from which the truck was approaching, the red flashing signal was 68 feet back from the center of the track on which the accident occurred.

The bus stopped immediately upon seeing the flashing lights, at which time it was roughly 125 to 150 feet from the tracks. The truck either stopped or was going so slowly as to be nearly stopped. At that time the truck was 75 to 100 feet in front of the bus. The bus was approximately 35 feet in length and the above mentioned 75 foot distance could have meant the distance between the front of the bus and the back of the truck, although there was also testimony by plaintiff's witnesses that the truck stopped short of the flashing lights on the near side of the tracks. 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 did not see the flashing signal on the other side of the tracks.

The train was traveling at a speed of about 70 miles an hour instead of at the usual speed of 60 miles an hour; its bright headlight could be seen at a distance of approximately 75 feet; it collided with defendant's truck, which was loaded with steel; the collision was terrific; the train was badly derailed, the truck was demolished; the driver of the truck and the engineer and fireman of the locomotive were all killed in the accident.

Was the foregoing evidence sufficient to take the case to the jury on the question of defendant's negligence-there being no question of contributory negligence involved?

Where a railroad crossing is in a country district, there is, in the absence of special circumstances, no limit to the rate of speed at which a railroad may run its trains, so long as the safety of passengers is not jeopardized. A railroad Company or common carrier is not, in this class of case, an insurer against accidents to its passengers, and ‘ Even if [on a straight track] * * * the train was going at a speed of 80 miles an hour that fact alone would not have justified an inference of defendant's negligence’ : Sylvester v. Pennsylvania R. Co., 357 Pa. 213, 216, 53 A.2d 537, 539. It is settled law that a high rate of speed, even at public crossings, is not negligence per se and ‘ before a jury may consider whether a particular rate of speed constitutes negligence, there must be evidence of special circumstances that renders such speed excessive '[1]: Ealy v. New York Central R. Co., 333 Pa. 471, 475, 5 A.2d 110, 112.

In Rich Hill Coal Company v. Bashore, 334 Pa. 449, 473, 7 A.2d 302, 314, this Court said: " The mere fact of collision between a railway train and a vehicle at a highway grade crossing furnishes no basis for any inference as to whether the accident was caused by negligence of the railway company, or of the traveler on the highway, or of both, or without fault of any one ." Furthermore, as was so well said by Justice Stern in Nebel v. Burrelli, 352 Pa. 70, 71, 74, 41 A.2d 873, 874:The mere happening of a collision between the vehicle of a common carrier and a vehicle under other control or management does not give rise to any inference of negligence on the part of the carrier . The rule of res ipsa loquitur does not apply to such an accident. Zaltouski v. Scranton R. Co., 310 Pa. 531, 165 A. 847; Hughes v. Philadelphia Transportation Co., 154 Pa.Super. 162, 35 A.2d 544. * * * Our later cases are all to the effect that it is only where an accident to a passenger happens through defective appliances or means of transportation, such as tracks, cars, machinery or motive power, that the burden is cast upon defendant to exculpate itself from an inference of negligence; in all other cases the burden is upon the passenger to prove such neligence: Swink v. Philadelphia Rapid Transit Co., 277 Pa. 220, 120 A. 827; Zaltouski v. Scranton R. Co., 310 Pa. 531, 534, 165 A. 847, 848; Dupont v. Pennsylvania R. Co., 337 Pa. 89, 91, 10 A.2d 444, 445, 129 A.L.R. 1337.’

Has the plaintiff satisfied the burden of proof?

Each party placed considerable emphasis upon the question of whether or not the train blew a whistle to warn of its approach. Defendant's witnesses testified that they heard the train whistle. Two of the plaintiff's witnesses said they did not hear any train whistle, but the testimony of one of plaintiff's witnesses, Thaddeus J. Tomalewski, was sufficient on this point. He testified he was listening for the train whistle because he used Wolf's Crossing as a place for him to determine whether or not he could ‘ lock out’ his mail sacks or whether he would require...

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