Kowtko v. Delaware and Hudson Railroad Corp., Civ. A. No. 4104.

Citation131 F. Supp. 95
Decision Date06 April 1955
Docket NumberCiv. A. No. 4104.
PartiesHazel KOWTKO, Administratrix of the Estate of George Kowtko, Deceased, and Hazel Kowtko, in her own right, Plaintiff, v. The DELAWARE AND HUDSON RAILROAD CORPORATION, Defendant.
CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania


Frank J. McDonnell, Paul A. McGlone, Scranton, Pa., for plaintiff.

Paul Bedford, S. Keene Mitchell, Jr., Michael H. Sheridan, Wilkes-Barre, Pa., for defendant.

JOHN W. MURPHY, District Judge.

Plaintiff of Pennsylvania in her own right and as administratrix of the estate of George Kowtko, deceased, brought this action under the Pennsylvania Wrongful Death1 and Survival Acts,2 to recover damages from defendant railroad, a New York corporation, for the death of her son, George Kowtko, caused by defendant's negligence in a grade crossing accident in this district. The jury returned a verdict for plaintiff in her own right, $15,000; as administratrix, $35,000.3 Defendant moves to set aside the verdict and for judgment in its favor and in the alternative for a new trial.4

Diversity of citizenship and the requisite amount in controversy being the sole basis of jurisdiction, the substantive law of Pennsylvania is controlling as to the rights and obligations of the parties.5 The proper function of the Federal Court is to ascertain what the state law is, not what it ought to be.6

Viewing the facts, including all inferences reasonably deducible therefrom in the light most favorable to the verdict,7 it appears that about 4:10 P.M. on a day in March, George Kowtko drove his Pontiac sedan automobile north on South Valley Avenue in the Borough of Olyphant and westward to the point where the avenue crosses defendant's four tracks — a busy urban crossing. There was a light snow falling, the sky overcast, the air misty, the asphalt pavement and the wooden planked crossing wet. A long-time resident of the borough and familiar with the crossing, Kowtko stopped his car about 15 to 20 feet east of the crossing (—on plaintiff's Ex. 6), the usual place of stopping. From that point there was a 4.3% downgrade toward defendant's tracks. The view to the north8 was about 200 feet diagonally — 158 feet north of the crossing; any further view being obstructed by the contour and topography of the land, an embankment, the gateman's tower located on the northeast side of the crossing, a Hudson Coal Company mine sign, a fence, fence posts, bushes, and concrete cribbing along defendant's right of way. The jury had a view of the locus in quo. A full view to the north was not available until one had passed defendant's first or siding track.9

About that time there was traffic on a narrow gauge mine track which intersected the avenue to Kowtko's rear, a train stopped south of the crossing on defendant's first track, an automobile driven by one Preschutti some 8 to 10 feet ahead of Kowtko about to traverse the crossing. Having stopped, looked and listened, the gates being in a raised position, Kowtko proceeded at 5 to 10 miles an hour carefully10 across defendant's tracks. In a few seconds, as the car reached the fourth track, it was struck by the head diesel unit of one of defendant's southbound freight trains,11 traveling at the moment 50 miles per hour,12 hurled into the air onto defendant's northbound track, rolled end to end three times, coming to rest some 70 to 75 feet from the point of contact. The automobile was demolished. The head end of the train came to a stop 1,400 to 1,500 feet below the crossing. As a result of the injuries sustained Kowtko was rendered unconscious and died within ten minutes after the collision.

Three witnesses13 in the vicinity at the time, (a) one on the small-gauge track on South Valley Avenue, (b) another on a six-foot embankment northeast of the crossing, and (c) Preschutti, testified that they had heard no whistle or bell or other signal sounded before the accident.

Immediately southwest of defendant's crossing Lafayette Street turns rather abruptly northeasterly toward defendant's tracks onto a wooden planked part of defendant's crossing.14

There were gates on the east and west side and a separate gate for traffic on Lafayette Street. The gates were controlled by separate levers in the gateman's tower; raised and lowered by a manually operated four foot long pump handle, the raising or lowering operation respectively requiring about sixteen seconds. Just before the collision one Koslab, a farmer, drove his truck north on Lafayette Street and, the gates being up, passed the point where the gates would normally come down. After stopping to let South Valley Avenue traffic, pedestrian and vehicular, pass, he shifted into low gear and was about to proceed onto the crossing when he noticed defendant's train some 50 to 75 feet away. (See defendant's Ex. 9). He stepped on his brake; the truck was "jumping". As the train passed by the front end of the truck was only a few feet away. Defendant's engineer testified that he sounded his bell and whistle for another crossing 1,000 to 1,200 feet to the north; when the train was 750 feet from the South Valley Avenue crossing, seeing the truck in danger (see view defendant's Ex. 6, 175 feet; plaintiff's Ex. 9, 100 feet), he sounded his whistle (the usual crossing signal), the bell was ringing, and repeated the signal at 500 feet. He then sounded short sharp whistles and when the train was 50 feet from the crossing put the brakes into emergency position. After the emergency brakes were applied the train went over the crossing at 40 miles per hour. From his position on the right 30 feet from the head end, he did not see either of the two cars on the crossing. The fireman on the left side heard the whistle repeated,15 the bell ringing; right after the brakes were applied he saw the two cars coming onto the crossing, observed that one car just passed, the other was struck by the engine.

When the train was 1,000 to 1,200 feet north of the crossing the gateman, a fairly new hand at the job, lowered one set of gates, i. e., the northeast and southwest gates on South Valley Avenue (see × on defendant's Ex. 1). When the train was 250 feet from the crossing he was leaning out the tower window blowing a police whistle and waving his arms to attract the truck driver's attention. When the train was "very, very close" to the crossing, excited, he raised the gates purportedly to help the truck driver, but actually of no help at all, and in doing so invited traffic to use the crossing, of course, with due care under the circumstances but with a sense of caution dulled by the apparent indication that the crossing was open for use by vehicular traffic. After the accident the two sets of gates east and west, not the Lafayette Street gate, were lowered. The gateman never saw Kowtko's car until after it was struck and did not know where it came from. (Cf. defendant's Exs. 10 and 11).

Whether under the circumstances: adequate and timely signals were given — especially after the gates were raised; there was excessive speed; the train was under proper control and was handled with care; there was negligence in not lowering all the gates; in raising the gates which could not possibly help the situation and actually created more danger, and finally whether or not in view of the presumption of care, because of the death of Kowtko and the place of the accident, the defendant was negligent or plaintiff's decedent free from contributory negligence, were all questions for the jury.16 The verdict and answers to interrogatories were in plaintiff's favor.17 There was substantial competent evidence to support the verdict.18 Defendant's motion to set aside the verdict and for judgment in its favor will therefore be denied.

In its motion for a new trial19 defendant asserts the verdict was excessive; inadequacy of proof of cost of decedent's maintenance, and of contributions by plaintiff to the decedent; that gratuity subsistence payments to George Kowtko by the Veterans Administration did not constitute earnings; error in our instructions as to the possible measure of damages.

Decedent was twenty-nine years ten months of age at the time of his death. At twenty-one he was inducted into the United States Army and at some time during thirty-eight months of military service had an occupational specialty of Movie Projectionist 137. Within four months after his military service terminated and until the time of his death he was employed steadily and worked regularly at the Billig Shoe Company, in what capacity was not shown. His average monthly earnings for the year previous to his death were $174.13, and for the four months immediately prior to his death $174.44. While there was no evidence as to the extent of earlier school attendance the decedent was enrolled and attended night school under Public Law 346, Veterans' Regulation No. 1(A), pt. 8, 38 U.S.C.A. following section 745, in training in the Industrial Sewing Machine and Repair School from July 18, 1949, to July 23, 1950; from November 15, 1950, to March 16, 1951, he was in training as an automobile mechanic at the Mid-Valley Vocational School. As a veteran he received $70 per month subsistence allowance from the Veterans Administration and was entitled at the time of his death to two years, eight months, and eleven days additional training and subsistence allowance, (ten months, seven days at the time of trial). Public Law 512, Veterans' Regulation No. 1(A) pt. 8, subd. 6(a), established a ceiling of $210 per month including regular earnings plus the subsistence allowance.

Upon returning from military service he lived for eleven months with his mother20 in her seven-room home on Grant Street in the area of the accident. Thereafter he and his wife, whom he married while in the service, lived with the mother for seven months and then moved to an apartment on Park Street where they lived together for two years. After signing a separation...

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  • Brooks v. United States, Civ. A. No. 66-514.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 15, 1967
    ...557, 561. In general, the admissibility of such testimony has been accepted. 79 A.L.R. 2d 259. But, cf., Kowtko v. Delaware and Hudson Railroad Corp. (D.C.Pa. 1955), 131 F.Supp. 95, 107, stating a contrary Pennsylvania ruling. However, some courts have expressed doubt about such testimony a......
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    ...are not admissible in jury trials in Pennsylvania. Thirkell v. Equitable Gas Co., 307 Pa. 377, 161 A. 313; Kowtko v. Delaware & Hudson R. R., 131 F.Supp. 95, 107 (D.C.Pa.). Instead, the jury determines 'present worth' from the trial judge's explanation of the concept, and such concrete illu......
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    ...in a wrongful death action. See, e. g., Livaccari v. Zafonte, 48 A.D.2d 20, 367, N.Y.S.2d 808, 813 (1975); Kowtko v. Delaware & Hudson R. Corp., 131 F.Supp. 95, 104 (M.Pa.1955); Bolino v. Illinois Terminal R. Co., 355 Mo. 1236, 200 S.W.2d 352, 359 (1947); Robinson v. Dickson, 91 N.H. 29, 13......
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