Perucca v. Baltimore & OR Co.

• Decision Date: 03 October 1929
• Docket Number: No. 3962,3963.,3962
• Citation: 35 F.2d 113
• Court: U.S. Court of Appeals — Third Circuit
• Parties: PERUCCA et al. v. BALTIMORE & O. R. CO. CONTRELLA et ux. v. SAME.

35 F.2d 113 (1929)

PERUCCA et al. v. BALTIMORE & O. R. CO.

CONTRELLA et ux. v. SAME.

Nos. 3962, 3963.

Circuit Court of Appeals, Third Circuit.

October 3, 1929.

Walter L. Dipple, of Pittsburgh, Pa., for appellants.

Wm. H. Eckert and Smith, Buchanan, Scott & Gordon, all of Pittsburgh, Pa., for appellee.

Before BUFFINGTON and DAVIS, Circuit Judges, and MORRIS, District Judge.

MORRIS, District Judge.

The Stutz roadster of Pete M. Perucca, driven by his wife, Mary Perucca, was struck by a west-bound engine as the car was passing from the south to the north, over the tracks of the defendant corporation, at a public crossing, in the borough of Sutersville in the state of Pennsylvania. The car was destroyed and the driver injured as a result. In the suit instituted by Perucca and his wife to recover damages for the injuries so sustained, the court below directed a verdict in favor of defendant upon the ground that, notwithstanding the testimony of Mrs. Perucca that she stopped, looked, and listened when the car was within a few feet of the southerly or east bound track, looked again when she was on the crossing, and notwithstanding the testimony of five other witnesses that the car stopped as testified to by Mrs. Perucca, the undisputed physical facts showed that Mrs. Perucca was guilty of contributory negligence in that she did not look, or looking and seeing took a chance. This act of the court is assigned as error.

With respect to the controlling principles of law, there is really no dispute between the parties. The duty of one about to cross the tracks of a railroad in the state of Pennsylvania has been frequently declared by the courts of that state. That law governs here. Delaware & Hudson Co. v. Nahas, 14 F.(2d) 56 (C. C. A. 3). It is sufficiently set out for the purpose of this case in New York Cent. & H. R. R. Co. v. Maidment (C. C. A. 3) 168 F. 21, 21 L. R. A. (N. S.) 794; Grimes v. Penna. R. Co., 289 Pa. 320, 137 A. 451; Radziemenski v. Baltimore & Ohio R. Co., 283 Pa. 182, 128 A. 735; and Cohen v. Phila. & Reading R. Co., 211 Pa. 227, 60 A. 729. These cases likewise disclose that upon a motion for a directed verdict the court may not decide disputed questions of fact and must give to the party against whom the motion is made the benefit of the most favorable inferences of which the testimony is reasonably susceptible. If the motion is made by the defendant, the court must give to the plaintiff the strongest, legitimate view of the evidence in his favor and disregard all countervailing evidence; but if the indisputable physical conditions, the uncontradicted external facts or mathematical tests and calculations based upon facts or factors that are fixed and certain, establish that the person injured could not have performed his legal duty, the oral testimony to the contrary must be ignored, and a verdict for the defendant directed.

The question for our decision here is solely whether the undisputed physical facts and conditions and mathematical tests and calculations, based upon facts fixed by the record with definiteness and precision, make certain that Mrs. Perucca could not have performed her legal duty as testified to by her and her five corroborating witnesses. The accident occurred at night. There was no rain, fog, mist, or snow. It was one day before full moon and the sky was partly cloudy. The crossing was not protected by gates or watchman. The tracks were upon the top of an embankment. The street leading to them from the south, over which Mrs. Perucca traveled, was narrow and unimproved. Its grade was found by actual measurement of defendant's civil engineer to be "approximately 25 per cent." At eight rail lengths east of the crossing, the tracks began to curve in a northerly direction. As appears from the photograph thereof in evidence, the curve was a rather sharp one, limiting the distance to which the tracks were unobscured from the point 3 or 4 feet south of the east-bound track, at which six witnesses testified Mrs. Perucca stopped, to approximately 660 feet. From the crossing, the second point from which Mrs. Perucca testified she looked, the line of vision was unobstructed for 875 feet. The crossing was in the westerly outskirts of Sutersville. The main street of the town lay to the east. Adjoining the railroad on the south and southeast were a number of stores with well-lighted windows. On the northerly side, too, there were lighted windows. There was a light at the crossing. The engine's electric headlight was burning. Attached to the engine was a caboose only. Mrs. Perucca testified that the curtains were on the easterly or right-hand side of the car, and that when she stopped within 3 or 4 feet of the eastbound track, the right-hand door was opened at her request by Miss Contrella, who was riding with Mrs. Perucca as her guest and was killed, to enable them to hear better, and that after looking in both directions and seeing nothing, she put the machine in low gear and started over, and that when she was on the crossing she looked again and saw nothing. She did not know the speed of the car when she started across, but supposed it was 4 or 5 miles an hour and that it was 7 or 8 miles when the car was struck as it was crossing the west-bound track. The gauge of each track was 4 feet, 8½ inches. The distance between the tracks was 8 feet, 3½ inches. The distance from the southerly rail of the east-bound track to the northerly rail of the west-bound track was 17 feet, 8½ inches. The total distance from the point at which it was testified the car was stopped to the point at which it was struck was approximately 21 feet. The engine's speed was variously estimated. The highest estimate was "terribly fast, * * * well over fifty miles per hour." It ran about a thousand feet after the collision before it stopped. There was much evidence that there was no signal by whistle, bell, or otherwise of the engine's approach. The court below arrived at its conclusions by mathematical calculations showing that it would have taken the car traveling at 3 miles an hour only one-third the time to cross the tracks...