Guilinger v. Pennsylvania Railroad Co.

• Decision Date: 13 April 1931
• Docket Number: 55
• Citation: Guilinger v. Pennsylvania Railroad Co., 304 Pa. 140, 155 A. 293 (Pa. 1931)
• Parties: Guilinger v. Pennsylvania Railroad Co., Appellant
• Court: Pennsylvania Supreme Court

155 A. 293

304 Pa. 140

Guilinger v. Pennsylvania Railroad Co., Appellant

No. 55

Supreme Court of Pennsylvania

April 13, 1931

Argued March 16, 1931

Appeal, No. 55, March T., 1931, by defendant, from judgment of C.P. Venango Co., Aug. T., 1928, No. 24, on verdict for plaintiff, in case of Leroy Guilinger v. Pennsylvania Railroad Co. Affirmed.

Trespass for personal injuries. Before PARKER, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff Leroy Guilinger, for $12,500 and verdict and judgment for Guy C. Kellogg, see next case, for $7,500. Defendant appealed.

Errors assigned, inter alia, in both appeals, was refusal of judgment for defendant n.o.v., quoting record.

The assignments of error are overruled, and the judgment is affirmed.

J Villard Frampton, John L. Nesbit, Peter M. Speer and James H Courtney, for appellant. -- Plaintiffs, under their own proofs, were in a situation with which they were familiar and from which, under their own knowledge of the conditions actually existing, danger was reasonably to be apprehended until the crossing was made, and failed to continue to look and exercise due care after committing themselves to the crossing, and to observe the danger confronting them, with the result that they were struck as they entered upon the second track: Carroll v. R.R., 12 W.N.C. 348; Walsh v. R.R., 222 Pa. 162; Myers v. R.R., 150 Pa. 386; Mack v. R.R., 92 Pa.Super. 455; Gasser v. Ry., 266 Pa. 493; Massinger v. R.R., 300 Pa. 6; Lunzer v. R.R., 296 Pa. 393; Bernstein v. R.R., 252 Pa. 581; Tull v. R.R., 292 Pa. 458; Miller v. R.R., 299 Pa. 63; Gelwicks v. R.R., 301 Pa. 68.

Plaintiffs failed to walk ahead of the truck and on the crossing to look for the approaching train: Bistider v. R.R., 224 Pa. 615; Benner v. Ry., 262 Pa. 307; Kinter v. R.R., 204 Pa. 497; Keller v. Ry., 35 Pa.Super. 488; Mankewicz v. R.R., 214 Pa. 386.

Edmond C. Breene and A. B. Jobson, for appellees. -- The facts in this case clearly bring it within the decisions of Siever v. Ry., 252 Pa. 1, and Hoffman v. R.R., 278 Pa. 246.

Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.

OPINION

MR. JUSTICE MAXEY:

At 7:27 a.m. on June 30, 1926, the plaintiff, Leroy Guilinger, was driving a large motor truck from west to east on a public road leading through and from the plant of the Pennzoil Co. across the tracks of the defendant company to a state highway. He was accompanied by Guy C. Kellogg and a man by the name of Hopwood. All three were employed by the Pennzoil Co., Guilinger being a truck driver. On the day of the accident Guilinger, Kellogg and Hopwood were taking a load of lumber across the above tracks for their employer. The crossing where the accident took place is located in a built-up section of Rouseville Borough, Venango County, Pa. It is a much-used thoroughfare and is crossed at grade by five tracks of the defendant company. The tracks, numbered from west to east (the direction plaintiff was driving) are (1) a siding; (2) main southbound track; (3) main northbound track; (4) and (5) sidings. The public road on the west side of the crossing is 37 feet wide for a considerable distance. Along its south side and near the railroad siding No. 1 is a three-story brick barrel house of the Pennzoil Co. This extends along the southern side of the road 90 feet and southerly along the railroad siding No. 1 156 feet. On the morning of the accident the view south at track No. 1 was further obstructed by some box cars standing on the siding, the first box car being about 40 feet south of the crossing. The distance from the northeast corner of the barrel house to the first rail of the first track is 5 feet. The distance from the east rail of siding No. 1 to the first rail of the southbound track is 9 feet 1 1/2 inches. The distance between the southbound track and the northbound track is 8 feet 1 1/2 inches. All the tracks are of standard gauge, 4 feet 8 1/2 inches.

The plaintiff, Guilinger, with Kellogg and Hopwood in the seat with him, drove the truck to the north of the center line of the approach and stopped with the front end of the truck a sufficient distance from the west rail of the first track so as to clear any trains moving thereon, and, according to his testimony, he saw and heard no train approaching. It was testified that the point at which he stopped for observation was the usual and customary place for vehicles to stop before entering the crossing. At the point the truck stopped, the driver had an unobstructed view south along the southbound main track of 150 to 200 feet and an unobstructed view north of 300 feet. There was nothing to interfere with the hearing of signals. There was no whistling post maintained by the defendant company south of the crossing. All the occupants, according to their testimony, looked and listened, but heard no signals. Guilinger then threw the motor into low gear and started across the track at a speed of from 3 to 4 miles an hour. He looked first up the track and then down the track to see if there were any trains coming. Three hundred feet south of the crossing the tracks curved to the west, obscuring the view of approaching trains. The truck was on track No. 2, i.e., the southbound main track, when Guilinger saw the train coming north on the southbound track at a speed of 35 to 40 miles an hour. Guilinger bade the other men jump and tried to clear the track with the truck, but the latter was struck at its center and thrown north a distance of 150 to 200 feet. The train stopped within 200 feet. Both Guilinger and Kellogg sustained substantial physical injuries. Suit was brought, the case was tried and the jury returned a verdict of $12,500 for the plaintiff Guilinger and $7,500 for the plaintiff Kellogg. Motions for a new trial and for judgment n.o.v. were made. The former was not pressed; the latter was refused. Judgment was entered on the verdict.

Appellant contends that plaintiffs were guilty of contributory negligence as a matter of law and that the court should have entered judgment for the defendant, n.o.v. The first assignment of error relates to the refusal of the court to enter judgment n.o.v. The third and seventh relate to the refusal of the court to give binding instructions for the defendant. The fifth is related to the third; the ninth to the first, and do not require separate discussion. The even numbered assignments refer to the companion case of Kellogg against the same defendant, separately decided by us though not separately discussed. In Mountain v. American Window Glass Co., 263 Pa. 181, this court held that on a motion for judgment n.o.v. the testimony should not only be read in the light most advantageous to plaintiff, all conflicts therein being resolved in his favor, but he must be given the benefit of every fact and inference of fact pertaining to the issues involved which may reasonably be deduced from the evidence. See also King v. Darlington Brick & Mining Co., 284 Pa. 277. In other words, on a motion for judgment n.o.v., it is not for the court to determine whether or not the court would arrive at a verdict different from the verdict the jury arrived at, but whether or not there was evidence in the case that would negative the theory that the jury's verdict was founded merely upon a guess or conjecture.

The duty of a driver of a vehicle about to cross a railroad, in respect to stopping and viewing the tracks, has been often defined. In Siever v. Pbg., C., C. & St. L. Ry. Co., 252 Pa. 1, at page 8, this court, in an opinion by Justice MOSCHZISKER, laid down this principle: "When a driver stops at a place where he cannot get a good view of the railroad he is about to cross from the vehicle in which he is riding, he must get out and walk to a spot where he can secure such a view, and his failure so to do constitutes contributory negligence in law, for stopping 'where an approaching train cannot be seen . . . is not an observance of the duty to stop, look and listen .'; but when he comes to a standstill at a usual stopping place, where he can get some view of the tracks, whether he should go forward to a 'better place to look,' is a question for the jury to determine." In the case of Hoffman v. Pittsburgh & L. Erie R.R., 278 Pa. 246, this court, in an opinion by the present Chief Justice, said: "Stopping where approaching danger is not visible is not an observance of his [i.e., the driver's] duty to stop, look and listen; if, however, he stops at...