Conrad v. BALTIMORE & OHIO RAILROAD COMPANY

• Decision Date: 03 May 1956
• Docket Number: Civ. A. 11022.
• Parties: James Oliver CONRAD and Suzanne Conrad Godot, Executors of the Estate of William O. Conrad, Deceased, Plaintiffs, v. The BALTIMORE & OHIO RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

146 F. Supp. 151

James Oliver CONRAD and Suzanne Conrad Godot, Executors of the Estate of William O. Conrad, Deceased, Plaintiffs, v. The BALTIMORE & OHIO RAILROAD COMPANY, Defendant.

Civ. A. 11022.

United States District Court W. D. Pennsylvania.

May 3, 1956.

Murrin & Murrin, Butler, Pa., for plaintiffs.

Vincent M. Casey, Margiotti & Casey, Pittsburgh, Pa., for defendant.

WILLSON, District Judge.

The fatal accident of which this litigation is concerned occurred on January 9, 1952 at the same crossing described in the case of Dostal v. Baltimore & O. R. Co., 3 Cir., 189 F.2d 352. There are some differences, however, in the character of the crossing which will be mentioned.

The accident with which we are concerned happened between 6:30 and 6:45 A.M. The roadway was wet, but there was no storm either of snow or rain. Visibility was variously described, but the evidence shows that it was cloudy.

There was one eye-witness to the accident. It was on the testimony of the eye-witness and the physical facts and circumstances surrounding the crossing that plaintiffs based their claim for relief. Plaintiffs' decedent was a guest passenger in a car owned and driven by Russell S. Moore. They were on their way to work when the Moore car was struck at the crossing by a Baltimore & Ohio locomotive proceeding from Butler to Pittsburgh.

Summarizing the witness Cooper's testimony, he stated that he also drove his car on Route 8 on the way to work, intending to make the turn at the crossing. He testified his speed was between fifty and sixty miles an hour, but finally fixed it at fifty-five miles per hour, based upon his observation of the speedometer in his car. He passed the train at the upper end of the bend in the road. From that point Route 8 is roughly parallel to defendant's tracks. The witness was emphatic in his statement that he heard no bell or whistle from the locomotive and that he did not know whether a bell was rung or a whistle blown. His reason was that he paid no attention, as he had in mind that the train was proceeding behind him towards the crossing over which he was to drive his car, and that as he knew the train was coming, he paid no attention to any sound. He intended to, and did, turn down from Route 8 on the easterly leg of the "Y". He stated that as he drove his car toward the "Y" and while on Route 8, he could see that the red flashing lights at the crossing were in operation. He also saw the car in which decedent was riding turn down the "Y" from Route 8 toward the crossing. The distance from Route 8 to the middle of the track is one hundred feet. The witness stated that when he turned his car down the "Y" and as he proceeded toward the track, he noticed that the flashing lights were still operating. However, at this point in his testimony there was some hesitancy on the part of the witness Cooper to state positively as to whether he saw the lights flashing as he drove down the "Y". The witness stated that he stopped his car four feet in back of the Moore car which in turn was stopped ten to twelve feet from the south rail. At that point, the witness stated that the train was in view to his right as he approached the crossing. He stated that when he stopped his car and saw the train from his right it was from one hundred forty to two hundred feet away. His car was stationary for several seconds, that is, two or three seconds, when the witness noticed that the Moore car started to move forward. It continued forward, as did the locomotive, and the locomotive struck the Moore car in its approximate center.

Plaintiffs' evidence also pointed to the proposition that the easterly bank of the east leg, as well as the signal light standard, the signal light box and wire tended to obscure the view of the east leg of the "Y" toward the direction in which the train was coming. However, Cooper, while stationary and back of the Moore car, said he saw the headlight of the locomotive, and plaintiff James Conrad, who was familiar with the crossing, testified on this phase of the case that a burning headlight could no doubt be seen from that point. There were two sets of two lights each on the light pole south of the crossing facing the driver of the Moore car. One set of lights appeared to be facing more toward Pittsburgh than toward the Butler leg of the "Y". There was some evidence, too, that the lights could not be seen at a certain point as the car moved down the east leg of the "Y", but in this respect plaintiffs' evidence is largely a discussion of daytime view. The accident happened in the darkness. Cooper saw the flashing red lights from two hundred feet away and it is evident they were operating as Moore drove down the east leg.

...