Jewell v. Pennsylvania R. Co.

• Decision Date: 28 June 1962
• Citation: 55 Del. 6,183 A.2d 193
• Parties: , 55 Del. 6 Luther F. JEWELL, Plaintiff Below, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, a corporation of the Commonwealth of Pennsylvania, Defendant Below, Appellee. The PENNSYLVANIA RAILROAD COMPANY, a corporation of the Commonwealth of Pennsylvania, Defendant Below, Appellant, v. Beverly Ann JEWELL, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 193

183 A.2d 193

5 Storey 6, 55 Del. 6

Luther F. JEWELL, Plaintiff Below, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, a corporation of the

Commonwealth of Pennsylvania, Defendant Below, Appellee.

The PENNSYLVANIA RAILROAD COMPANY, a corporation of the

Commonwealth of Pennsylvania, Defendant Below, Appellant, v. Beverly Ann JEWELL, Plaintiff Below, Appellee.

Supreme Court of Delaware.

June 28, 1962.

Reargument Denied July 24, 1962.

Appeals from the Superior Court in and for New Castle County.

Samuel R. Russell, of Morford, Young & Conaway, Wilmington, for Luther F. Jewell and Beverly Ann Jewell.

C. W. Berl, Jr., of Berl, Potter & Anderson, Wilmington, for Pennsylvania R. Co.

SOUTHERLAND, C. J., WOLCOTT, J., and CAREY, Judge, sitting.

WOLCOTT, Justice.

This is an appeal and cross-appeal consolidated for argument. The appeal is taken by the plaintiff, Luther F. Jewell, from the granting of a motion for a directed verdict against him on the ground of contributory negligence, and the subsequent denial of his motion for a new trial. The cross-appeal is taken by the defendant, the Pennsylvania Railroad Company, from the denial of its motion for judgment notwithstanding the verdict in favor of Beverly Ann Jewell, widow of Kenneth Jewell, or, in the alternative, for a new trial.

The facts stated in the most favorable light to the plaintiffs are that on April 26, 1960, on a moonless, dark night, Luther F. Jewell was driving his car easterly on Old Landing Road approaching its intersection with the tracks of the defendant's railroad near the Town of Millsboro. His brother Kenneth was riding with him as a passenger. As the Jewell car entered the railroad crossing it was struck in the right side by the defendant's train proceeding in a northerly direction. Luther Jewell was injured. Kenneth Jewell was killed instantly.

As the Jewell car approached the crossing the two brothers were talking about the intended purchase of a car. The headlights of the car were turned on. Its windows were up. The rate of speed of the car was 25 miles per hour. At about 100 feet to the west of the crossing Luther Jewell looked to his right or to the south. He saw no train, nor did he hear any warning of the approach of one. He then looked to his left or to the north, and, again, neither saw nor heard anything. Kenneth Jewell said nothing to indicate that he either saw or heard the approach of a train. Luther slowed the car's rate of speed slightly and proceeded into the crossing. The car was struck by the train. Luther was familiar with the crossing, having traveled over it many times.

The train approaching the crossing from the south consisted of a black locomotive traveling backwards pulling a line of freight cars. It's headlight was lighted and on high beam. About 1000 feet to the south of the intersection the crew commenced the ringing of a bell and whistle. The train was traveling at a speed of 35 miles per hour. The whistle blast was a series of two long, a short, and a long blast. The last long whistle blast was commenced immediately before the collision. Both the engineer and the fireman looked for cars approaching the crossing but saw none until the train struck the Jewell car.

The crossing has a crossarm warning sign on Old Landing Road about 10 feet to the west. It is black and the lettering is almost obliterated. No gate, watchman, or blinker lights are maintained at the crossing by the defendant to warn of an approaching train. Old Landing Road runs almost due east and west. The defendant's tracks cross Old Landing Road at an angle from southeasterly to northwesterly so that a train running northerly approaches toward a vehicle proceeding easterly on Old Landing Road toward the crossing.

To the south of Old Landing Road and to the west of the crossing, houses line the street set back to a distance of approximately 40 feet. These houses extend to the east to a point about 100 feet west of the tracks. There is also a clump of trees about 12 feet high between the last dwelling and the tracks. We judicially notice that at this time of year these trees could not have been in full leaf.

To the north of Old Landing Road and to the west of the crossing is a gas plant approximately 40 feet from the crossing with a parking lot for trucks to the south. The result is that a motorist's view of the tracks to the north is obstructed until he is almost on the tracks. The lights of the gas plant brightly light up the area of the street and crossing, and cause a glare in the eyes of a driver approaching from the west.

Further reference to the facts will be made in our discussion of certain questions presented by the cross-appellant.

The appeal of Luther Jewell raises one question only for review. It is argued that error was committed in holding as a matter of law that he was guilty of contributory negligence because, viewing the facts in the light most favorable to him, two or more conclusions were possible with respect to negligence on his part, and therefore an issue was presented which must be resolved by the jury.

The trial judge found Luther Jewell to have been contributorily negligent because he found the following circumstances to be clear from the evidence: first, that he was familiar with the crossing in question; second, that from the west the crossing is open and visible to the south for a distance of at least 100 feet; third, that from the point where he said he looked to his right or in the direction of the train he had an unobstructed view of the tracks; fourth, that, at the time, the headlight of the train was on and its whistle was sounding; fifth, that the angle of the track and the road was such that the train was proceeding toward the plaintiff's car rather than at right angles to it, and, sixth, that Luther Jewell did not see the train.

Upon the basis of these facts, the trial judge ruled that Luther Jewell failed to keep a proper lookout and to see what was plainly there to be seen. He accordingly found him guilty of contributory negligence on the authority of Tompkins v. Baltimore & Ohio R. Co., 7 Terry 156, 81 A.2d 288.

It is, of course, true, as appellant argues, that the question of contributory negligence is ordinarily one for the determination of the jury, and not for the decision of the judge as a matter of law. Only when the facts permit reasonable men to draw from them but one inference clearly establishing the negligence of the plaintiff does it become a matter for the decision of the judge as a matter of law. Floyd v. Lipka, 1 Storey 487, 148 A.2d 541; Nailor v. Maryland, D. & V. Ry. Co., 6 Boyce 145, 97 A. 418.

In arguing that one possible inference from the facts is that he was not negligent, appellant points out that the night was dark; that there was a brightly lighted area at the crossing which made a glare in his eyes; that the house on his right was only 100 feet from the track; that there was a clump of trees between the house and the tracks, and that the engine was painted black. With respect to his failure to see the train after looking to his right, appellant argues that this may be explained either by his negligence or because the train was not visible. Thus, he says, an issue of fact is made which must be settled by the jury.

Appellant's argument, however, ignores the fundamental fact that the train, under the circumstances, necessarily was visible to a person looking to his right from the point appellant looked. It is inconceivable that a train with a brightlylighted headlight would not have been seen by a person looking almost directly down the tracks toward it, as the appellant would have looked, due to the angle made by the tracks with the street. It follows, therefore, that either the appellant did not look, as he says he did, or, if he looked, he did not see what was there plainly to be seen. His failure in either respect was negligent. Tompkins v. Baltimore & Ohio R. Co., supra. Since that negligence was at least a contributing cause to the accident, judgment was properly entered against him and will be affirmed.

The cross-appellant seeks a new trial as to the plaintiff, Beverly Ann Jewell, widow of Kenneth Jewell. It does not argue that it was not negligent as to Kenneth Jewell, nor that its negligence did not cause his death. ¹ It argues that certain rulings in the course of the trial, cumulatively at least, amount to prejudicial error, and, finally, that the verdict should be set aside on the ground that it is excessive. We will state the questions raised in our discussion of them.

First, it is argued that error was committed in excluding from evidence the testimony of a police officer regarding certain skid marks found at the site of the accident.

The plaintiff, Luther Jewell, testified that he was proceeding at about 25 miles per hour, slowed down as he approached the crossing, and at no time applied his brakes. To contradict this testimony defendant offered to prove by the investigating officer that...