DIMENCO v. PENNSYLVANIA RAILROAD COMPANY

• Decision Date: 11 April 1958
• Docket Number: Civ. A. No. 1600.
• Citation: 160 F. Supp. 505
• Parties: Gerald James DIMENCO, a minor, by Vincenzo Dimenco, his next friend, and Vincenzo Dimenco, Plaintiffs, v. The PENNSYLVANIA RAILROAD COMPANY, a corporation of the State of Pennsylvania, Defendant.
• Court: U.S. District Court — District of Delaware

160 F. Supp. 505

Gerald James DIMENCO, a minor, by Vincenzo Dimenco, his next friend and Vincenzo Dimenco, Plaintiffs, v. The PENNSYLVANIA RAILROAD COMPANY, a corporation of the State of Pennsylvania, Defendant.

Civ. A. No. 1600.

United States District Court D. Delaware.

April 11, 1958.

COPYRIGHT MATERIAL OMITTED

Albert L. Simon and Samuel R. Russell, Wilmington, Del., for plaintiffs.

John P. Sinclair (of Barl, Potter & Anderson), Wilmington, Del., for defendant.

LAYTON, District Judge.

At the trial, defendant moved for a directed verdict which was denied. The jury could not agree. After it was discharged, defendant filed this motion for a judgment in its favor pursuant to Rule 50(b), Fed.Rules Civ.Proc. 28 U.S.C. There are two main grounds for this motion; first, that defendant was guilty of no negligence or, in the alternative, that plaintiff was guilty of contributory negligence. The motion also assigns as error the fact that the Court submitted the issue of the last clear chance to the jury.

There were three types of warning at the crossing just described, the familiar "Stop, Look & Listen" signs on either side of 9th St., where the tracks crossed, warning bells at the same locations, and a watchman who stood in the middle of 9th St., immediately to the west of the tracks.¹ Defendant takes the position that it had erected all adequate warnings required by the exigencies of the physical location of the crossing. Plaintiff replies that because it is an inherently dangerous crossing, something more than the existing warnings was required.

In this connection, our Courts have spoken on several occasions. Roberts v. Maryland, Delaware & Virginia R. Co., 5 Boyce 150, 28 Del. 150, 91 A. 285; Gray v. Pennsylvania R. Co., 3 W.W.Harr. 450, 33 Del. 450, 139 A. 66; Reed v. Queen Anne's R. Co., 4 Pennewill, Del., 413, 57 A. 529, 531. A typical statement of the law may be found in the Reed case where it was said:

"When railroad trains are approaching such crossings, it is the duty of the company to give due and timely warning of such approach, so that travelers * * * may have reasonable notice thereof. It is further their duty to regulate the speed of the cars according to the danger. If the crossing be in a thickly populated * * * locality, or if the view of the crossing be obstructed, or exceptionally dangerous from any cause, it is the duty of the company to exercise greater care and caution, proportioned in every case to the danger * * *."

And in the Roberts case 28 Del. 150, 91 A. 287, the following pertinent language is to be found:

"* * * or if the peculiar conditions surrounding the crossing are of a nature that a traveler using due care and caution likewise is prevented from hearing the blowing of a whistle on the approaching locomotive, the danger of the crossing is increased, and the degree of care on the part of the railroad to warn travelers * * * is correspondingly increased."

A somewhat similar thought was expressed by Chief Justice Layton in Leedom v. Pennsylvania R. Co., 3 Terry 186, 42 Del. 186, 29 A.2d 171, 173, where he stated:

"At ordinary grade crossings, the sounding of the whistle, or perhaps, the ringing of the bell, may be a sufficient warning. At peculiarly dangerous crossings, some more efficient means of warning, or even an obstruction to passage, might be necessary."

And the language of the Court in Gray v. Pennsylvania R. Co., 3 W.W.Harr. 450, 33 Del. 450, 139 A. 66, 75, is particularly appropriate to the facts of this case:

"If there existed at the crossing in question, at the time of the accident, unusual dangers to persons approaching on the highway, it was the duty of the company to maintain at the crossing such means and agencies for the avoidance or prevention of injury as were reasonably required by the unusual situation. A railroad crossing, as we have said, is regarded as a place of danger, and particularly so if it is in a city or populous town, where existing conditions may make the crossing unusually dangerous. It is for the jury to say whether the crossing in question was such a crossing. The Court cannot say, as a matter of law, what particular means or agencies the company should employ in such case to notify persons approaching the crossing of the danger there existing, but we say it is the duty of the company to employ such means or agencies as are reasonably necessary to give timely and sufficient notice. What are the particular means or agencies that should be employed, and whether they have been employed, are questions for the jury to determine from all the evidence." (My emphasis.)

Now, it can be argued with a great deal of force here that the defendant had given reasonable warnings of the approach of its trains. There are warning signs, warning bells and, to those who would only look, there is the watchman. To this could be added the bells and whistles of the locomotives themselves and the very fact of the existence of tracks has been held to be a warning of danger. Reed v. Queen Anne's R. Co., supra. But, in reply, plaintiff points out that there are no warning signs facing a person going north on Young Street, and the noise of the defendant's locomotives and cars serves to a great degree to drown out the warning bells at the crossing. Moreover, to the pedestrian going north on Young Street, there is the...