Johns v. Baltimore & Ohio Railroad Company

• Decision Date: 18 June 1956
• Docket Number: Civ. A. No. 11322,11323.
• Citation: 143 F. Supp. 15
• Parties: Alfred P. JOHNS, Administrator of the Estate of William A. Johns, Deceased, v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation. Mary U. JOHNS v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation.
• Court: U.S. District Court — Eastern District of Pennsylvania

143 F. Supp. 15

Alfred P. JOHNS, Administrator of the Estate of William A. Johns, Deceased, v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation.

Mary U. JOHNS v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation.

Civ. A. Nos. 11322, 11323.

United States District Court W. D. Pennsylvania.

June 18, 1956.

Bloom, Bloom & Yard, and Wray G. Zelt, Jr., Washington, Pa., for plaintiffs.

Margiotti & Casey, and Marvin Power, Pittsburgh, Pa., for defendant.

WILLSON, District Judge.

William A. Johns, twenty-six years of age, was killed as the result of a grade crossing accident which occurred September 15, 1952, at about 9:30 A. M. on a clear day. Two civil actions were brought, one by Alfred P. Johns, Administrator of the estate at No. 11322 under the Survival Act, 12 P.S. § 1601 et seq., and the other by Mary U. Johns, the widow, at No. 11323 under the Wrongful Death Act, 20 P.S. § 320.601 et seq., of Pennsylvania. The accident occurred at what is known as the Woodall Crossing, Washington County, Western District of Pennsylvania. The cases are here under the diversity jurisdiction of the court, as the defendant, The Baltimore & Ohio Railroad Company, is a Maryland corporation and plaintiffs are and decedent was a resident of Pennsylvania. The law of Pennsylvania applies.

The cases being tried to a jury, a verdict under the Survival Act was for the administrator of the estate of William A. Johns in the sum of $10,000 and for the widow under the Wrongful Death Act in the sum of $60,000. Judgments were entered accordingly. Defendant moved for dismissal at the close of the plaintiffs' evidence and also for a directed verdict at the close of all the evidence. The cases are now before the court on defendant's motion under Rule 50, 28 U.S.C., for judgment notwithstanding the verdict and in the alternative for a new trial. Defendant urges that the evidence fails to show negligence on the part of the defendant and that in any event the evidence shows contributory negligence on the part of the decedent Johns.

Defendant's Motion For Judgment N. O. V.

In considering this motion, the court is mindful that the verdict of the jury was for the plaintiffs and in considering this motion the evidence must, therefore, be considered in the light most favorable to the plaintiffs. The problem is whether under all the evidence and the reasonable inferences to be drawn therefrom, considered in the light most favorable to the plaintiffs, a right to recover exists. Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F.2d 498; Downey v. Union Paving Co., 3 Cir., 184 F.2d 481.

Also, the jury having found the issues in favor of the plaintiffs, the court must take the view of the evidence most favorable to the plaintiffs and the court must assume that the jury found in plaintiffs' favor all facts which the evidence tended to prove. Meyonberg v. Pennsylvania R. Co., 3 Cir., 165 F.2d 50, and Williams v. Reading Co., 3 Cir., 175 F.2d 32.

The court is not free to reweigh the evidence or set aside the verdict because the jury might have drawn different inferences or conclusions or the court might have thought another result more reasonable, but must take the view of the evidence most favorable to the plaintiffs. Magee v. General Motors Corp., D.C., 117 F.Supp. 101, and the same case at 3 Cir., 213 F.2d 899.

Considered under the foregoing principles, the evidence may be summarized as follows: the weather was clear and visibility good. Johns was driving alone in his own car in a northerly direction on Woodall Road. From the City of Washington, Pennsylvania, defendant's single track runs generally westerly. A steam locomotive pulling seven cars had left the tower west of the Washington station, a distance of a mile and three-quarters from the crossing, at 9:27 A.M. The area of the crossing is in hilly terrain. The highway is a secondary road. As one proceeds northerly along it, the view to the right, that is easterly along the tracks, is restricted. A bank up to ten feet high blocks the view and on the morning in question the vegetation on this bank in the form of weeds and shrubs and other growth was six feet in height from the ground, further blocking the view. Easterly from the middle of the crossing, between the rails, according to Hugh H. Streator, a civil engineer, the view was 529 feet to a point where the tracks curve and disappear from view. From a point 6 7/10 feet south of the south rail on the highway the view was 425 feet, but with weeds six feet tall the view was reduced to 389 feet. He further stated that from 11 7/10 feet south of the rail, the view of the tracks ended at 451 feet, but that he estimated with weeds six feet tall the view was but 259 feet. From a point 16 7/10 feet south of the rail, the view was 376 feet, but with weeds six feet tall the view was but 129 feet.

An unusual feature at the scene of the accident was that for several weeks preceding that morning the defendant had been in the process of erecting flasher-light signals at the crossing. On the morning of the accident the standards had been erected and lights installed with red lenses, but the electric warning system had not been completed and the flasher-lights were therefore not in operation. Various photographs were introduced showing the cut through which the train approached the crossing, which corroborated the testimony of witnesses as to the restriction of the view to the right as one approached the crossing from the south.

There was one eye-witness to the fatal collision. As Johns drove his car toward the crossing he was followed by the witness Valentino, who was driving his own automobile a short distance behind the Johns car. Valentino testified that decedent stopped his car five or six feet south of the south rail and the witness stopped his car about eighteen feet behind decedent's car. The witness said he was listening but heard no whistle or bell, nor any sound of an approaching train, even though the left front window of his car was open. The witness said that he could see the decedent and that the decedent turned his head first to the left, that is westerly, and then to the right, that is easterly and toward the direction from which the train came. The witness stated that the Johns car remained stationary for several seconds and then moved on to the center of the tracks when it again stopped and remained stopped until defendant's locomotive struck the car and carried it westward along the track. This witness stated that as one proceeds northerly on Woodall Road toward the crossing the view to the east along defendant's track is obstructed by a bank. He said that weeds growing on this bank on the day of the accident were up to six feet in height, further obstructing the view. Valentino said that on account of the weeds decedent's view eastward along the track was limited to 300 to 350 feet.

Plaintiffs produced eight witnesses who testified that they were in a position to hear a whistle or a bell and would have heard the whistle or bell if one had been blown or rung, but that no whistle or warning signal was given by defendant's train crew.

The witness Grace Jones, who lived near the crossing, stated that the weeds on the south bank were higher than her head and that she was five feet six inches tall. Her husband, Roy F. Jones, testified that following the accident the flasher-lights were turned away from the highway, cardboard was put in the reflectors and that the high weeds were cut. This testimony was corroborated by the witness Alice Fisher.

The witness Valentino testified that the train struck the car while going approximately sixty miles per hour. The speed tape on the locomotive was introduced as evidence for plaintiff, and it indicated that the train approached the crossing at approximately seventy miles per hour. Defendant's witnesses were permitted, however, to explain to the jury that the tape on the locomotive was not the one which ordinarily was used on a locomotive of the type pulling the train in question. Defendant's explanation was that two types of tapes were used, one for high speed locomotives, and one for locomotives with maximum speeds of fifty miles per hour. The tape in question was the high speed tape used in a slow tape recorder, therefore the speed shown was incorrect, according to defendant, as showing from twenty to thirty miles too high a speed. The evidence, did, however, show that the locomotive carried decedent's car from 800 to 1000 feet down the track after the collision.

Members of the train crew testified that the whistle was blown commencing at the whistle post, 800 feet east of the crossing, and that the whistle was blown until the locomotive was twelve feet from the crossing. The engineer himself did not see the car. The Johns car was approaching the crossing on the fireman's side. The fireman's testimony was that on approaching the crossing he was looking ahead toward the roadway and the car flashed in view, "and the distance that I estimated him to be from the railroad crossing and us to be from the road crossing would be about equal or somewhere between ten and twelve feet."

From the foregoing summary it clearly appears that the issues of defendant's negligence and of decedent's contributory negligence were for the jury. At the trial the credibility of the witness Valentino was strenuously attacked by defendant. He was subjected to severe cross-examination as to his presence on the highway behind the decedent, with defendant's counsel inferring that whether Valentino was on the scene that morning was very questionable. However, at the argument on the pending motions, defendant adopted the testimony of Valentino and urged that it shows, as a matter of law, that decedent Johns was himself negligent. Defendant says that as plaintiffs' principal witness showed that decedent stopped his car upon the track and it remained there for a period of five or six seconds until struck by the approaching...