Marinelli v. Montour R. Co.

• Citation: 278 Pa.Super. 403,420 A.2d 603
• Parties: Eugene L. MARINELLI, Administrator of the Estate of Eugene R. Marinelli, Deceased, v. The MONTOUR RAILROAD COMPANY, Appellant.
• Decision Date: 16 October 1980
• Court: Superior Court of Pennsylvania

Page 603

420 A.2d 603

278 Pa.Super. 403

Eugene L. MARINELLI, Administrator of the Estate of Eugene R. Marinelli, Deceased, v. The MONTOUR RAILROAD COMPANY, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 14, 1979.

Filed June 6, 1980.

Reargument Denied Oct. 16, 1980.

Raymond G. Hasley, Pittsburgh, for appellant.

Sanford S. Finder, Washington, for appellee.

Before SPAETH, HOFFMAN and VAN der VOORT, JJ.

SPAETH, Judge:

Appellee, as administrator of the estate of his deceased son, Eugene R. Marinelli, commenced wrongful death and survival actions against appellant, Montour Railroad. Following a non-jury trial, the lower court rendered a verdict in favor of appellee in both actions. Montour's exceptions to the verdict were subsequently dismissed. On appeal, Montour argues that judgment notwithstanding the verdict should be entered in its favor for any of several reasons: appellee failed to prove that it was negligent; if it was negligent, appellee failed to prove that its negligence was the proximate cause of Marinelli's death; Marinelli's death resulted from his voluntary assumption of a known risk; and Marinelli was contributorily negligent as a matter of law. Montour also argues that the damages awarded by the lower court were unsupported by the evidence and hence excessive.

-Montour's Negligence-

In considering whether judgment n. o. v. should be entered in favor of Montour, we must view the evidence, including all reasonable inferences arising from it, in the light most favorable to appellee, the verdict-winner. Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Kresovich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970). So viewed, the evidence discloses the following.

During the summer of 1973, Eugene Marinelli, a sophomore at the University of West Virginia, was employed as a laborer by Cecil Township in Washington County. On July 25, he was working with a Township roadcrew on Burnside Road. Shortly before 2:30 p. m., Marinelli was instructed by his supervisor to board a Township dump truck and go with three other crew members-Angelo Quaresima, Ernest Davis, and Robert Soma-to another work site. Since the cab of the truck was designed to carry no more than three persons, Soma and Marinelli climbed into the back of the truck after Quaresima and Davis entered the cab. The truck was 8 feet 6 inches high, and was loaded with two and a half tons of stones-about half a truck load. On top of the stones were pitchforks, picks, and shovels. Because the stones were uncomfortable to sit on, and also because the tools presented a hazard, Soma and Marinelli seated themselves on the cab protector. The cab protector was a steel covering that was connected to the bed of the truck and extended over the top of the cab. Its purpose was to protect the cab from falling objects during dumping operations, but it provided Soma and Marinelli a convenient place to sit.

To get to the work destination, Quaresima drove the truck along Papp Road, which was owned and maintained by the Township. At one point the road crossed under a railroad bridge owned and maintained by Montour. The vertical clearance of this underpass was not marked, but Quaresima knew from prior experience that the dump truck could pass safely through. Quaresima, however, did not know, because he had not been told, that Soma and Marinelli were sitting on the cab protector. Moreover, Soma and Marinelli were seated on the cab protector facing the back of the truck and were oblivious to the existence of the bridge and underpass. Had either of them turned and looked forward, he would have seen the bridge and the underpass from a distance of 500 to 600 feet; but neither looked. When the accident occurred, the dump truck was traveling approximately 20 to 25 miles per hour, and Soma and Marinelli were hunched on the cab protector with their heads between their knees. They were seated in this way because several minutes earlier, while they had been sitting in an upright position, Soma's eyeglasses had been knocked from his head to the bed of the truck by an overhanging tree limb. Soma and Marinelli thought that by hunching over they would prevent a future mishap. Soma did not strike the bridge as the truck passed through the underpass, and escaped injury. Marinelli was killed instantaneously when the back of his head struck the bridge. When asked why Marinelli struck the bridge and he did not, Soma stated that because he was tall and thin, he was bending lower than Marinelli, who was shorter and stockier. No part of the truck hit the bridge, and had Marinelli been sitting in the truck bed on the stones, he would have also passed through the underpass safely.

Montour built the bridge in late 1913 and early 1914. When it was built, the vertical clearance between the road and the underside of the bridge was 14 feet. After the accident, Montour excavated about the piers supporting the bridge girders and discovered evidence indicating that the bridge was still 14 feet above the 1914 level of the roadbed. At the time of the accident, however, the vertical clearance was only 10 feet 2 inches. The reduction in the clearance evidently had resulted primarily, if not entirely, from the numerous repairs made to the road by the Township during the 59 years from 1914 to 1973. When the road needed repairing, the Township would repave it without removing the old surface. Road building materials thus accumulated to such an extent that several weeks before the accident the vertical clearance had been reduced to 8 feet. When school buses and maintenance equipment could no longer travel along the road because of the obstructed underpass, the Township increased the clearance to 10 feet 2 inches by reducing the level of the road bed. It was undisputed that since 1914, Montour had never inspected the vertical clearance underneath its bridge, and had made no attempt either itself to maintain the original 14 foot clearance or to persuade the Township to maintain the clearance. Furthermore, an inspection by Montour would have disclosed that the vertical clearance had been substantially less than 14 feet for a substantial period of time.

It is the well-established policy of this Commonwealth that a railroad company is required to maintain crossings of its railways with public highways ¹ that are safe for travelers upon the highways. Geelen v. Pennsylvania Railroad Co., 400 Pa. 240, 161 A.2d 595 (1960); Pro v. Pennsylvania Railroad Co., 390 Pa. 437, 135 A.2d 920 (1957); P., F.W. & C. Railway Co. v. Dunn, 56 Pa. 280 (1867). Thus, since the time when railroads were introduced in the Commonwealth it has been a criminal offense for a railroad to obstruct the passage of any crossing of a public highway, Act of March 20, 1845, P.L. 191 (repealed and substantially re-enacted at 18 Pa.C.S.A. § 6907 (1973)); Commonwealth v. P., H. & P. R.R. Co., 33 Pa.Super. 452 (1907), and an identical duty was created under civil law, Act of Feb. 19, 1849, P.L. 79, § 12, 15 P.S. § 4101, repealed by the Act of July 1, 1978, P.L 598, No. 116, § 2. Moreover, a railroad's responsibility does not cease at the point where it refrains from affirmatively creating an unsafe crossing. "The public is entitled to have crossing facilities continuously maintained in a safe condition," Scott Township v. Pa.P.U.C., 188 Pa.Super. 174, 179, 146 A.2d 617, 619 (1958), and when a crossing becomes unsafe, for whatever reason, a railroad may be ordered, at its own expense, to alter or abolish the crossing. 66 Pa.C.S.A. § 2702(c), (f) (1979). This is true even though the crossing was safe at the time of construction and has become unsafe only because of events that were beyond the railroad's control. E. g., Erie R.R. v. Public Service Commission, 271 Pa. 409, 114 A. 357 (1921); Pa.P.U.C. v. Septa, 21 Pa.Cmwlth. 106, 343 A.2d 371 (1975); Allegheny Cty. Port Auth. v. Pa. P.U.C., 207 Pa.Super. 299, 217 A.2d 810 (1966); Lehigh & New England R.R. v. Public Service Commission, 126 Pa.Super. 565, 191 A. 380 (1937).

When a crossing is accomplished by building a railroad bridge over the grade of a public highway, the railroad's duty to maintain a safe crossing includes the duty to build its bridge so " 'as to afford reasonably sufficient clearance or headway for ordinary vehicular traffic.' " Illinois Central Railroad Co. v. Farris, 259 F.2d 445, 447 (5th Cir. 1958) (WISDOM, J.) (footnote and citation omitted). If a railroad breaches this duty by maintaining a bridge with an insufficient clearance, it will be liable for the injuries that result from its negligence. Ryan v. St. Johnsbury & Lamoille Cty. R.R., 290 F.2d 350 (2d Cir. 1961); Norfolk Southern Ry. Co. v. Davis Frozen Foods, 195 F.2d 662 (4th Cir. 1952); Contino v. Baltimore & Annapolis R. Co., 178 F.2d 521 (4th Cir. 1949), cert. denied, 341 U.S. 927 (1951); Wittrup v. C. & N.W. Railway Co., Iowa, 226 N.W.2d 822 (1975); Benson v. Loehler, 228 Md. 55, 178 A.2d 909 (1962); Yackee v. Village of Napoleon, 135 Ohio St. 344, 21 N.E.2d 111 (1939); Krause v. Southern Pac. Co., 135 Or. 310, 295 P. 966 (1931).

In claiming that Montour breached its duty to maintain a safe crossing across Papp Road, appellee relies heavily on the Act of June 10, 1911, P.L. 867, § 1, 15 P.S. § 4116, repealed by the Act of July 1, 1978, P.L. 598, No. 116, § 2 (eff. Aug. 9, 1978). This statute provided:

In all cases where the railroad tracks of any company shall, for the purpose of avoiding or eliminating grade crossings, be so constructed as to cross any public highway above grade, by means of a bridge, viaduct, or any other structure, the abutments, piers, or other supports of such bridge shall be so built as to maintain a minimum width on said highway of twenty-four feet in the clear, and so as to maintain a minimum height of fourteen feet in the clear ....

Appellee contends that this statute required Montour to...