Wilson v. Pennsylvania R. Co.

• Citation: 219 A.2d 666,421 Pa. 419
• Parties: Martha V. WILSON, Admrx. of the Estate of Eugene Wilson, Deceased, Martha V. Wilson, Trustee Ad Litem for minor children, and Martha V. Wilson, Appellants, v. The PENNSYLVANIA RAILROAD COMPANY.
• Decision Date: 24 May 1966
• Court: United States State Supreme Court of Pennsylvania

Page 666

219 A.2d 666

421 Pa. 419

Martha V. WILSON, Admrx. of the Estate of Eugene Wilson, Deceased, Martha V. Wilson, Trustee Ad Litem for minor children, and Martha V. Wilson, Appellants, v. The PENNSYLVANIA RAILROAD COMPANY.

Supreme Court of Pennsylvania.

May 24, 1966.

Rodgers & Roney, Samuel L. Rodgers, Washington, Alice D. Tobias, Pittsburgh, for appellants

Aloysius F. Mahler, Pittsburgh, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.

OPINION

JONES, Justice.

This is a trespass suit for personal injury and property damages resulting from an accident which occurred in the early afternoon of December 22, 1959, at The Pennsylvania Railroad Company Ferry Street grade crossing in Allenport. At that time and place, defendant's train, consisting of 3 diesel locomotives and 135 empty coal hopper cars, struck the motor vehicle in which Eugene Wilson was driving alone. As a result of the collision, Wilson, thrown from the car, died on the way to the hospital.

Martha V. Wilson, widow of decedent, (plaintiff), instituted three actions: (a) under the Wrongful Death Act for herself and as trustee ad litem for her minor children; (b) under the Survival Act as administratrix of her deceased husband's estate; (c) in her own right as the owner of the automobile which was damaged in the collision.

At the trial, conflicting evidence was introduced as to whether or not the train sounded a warning whistle, whether or not the crossing had been ashed so as to make it safe for motor vehicles, and whether or not decedent's automobile had stopped on the crossing prior to the train's arrival or had backed into the oncoming train.

The jury rendered verdicts for defendant in all three actions. The court En banc refused plaintiff's motion for a new trial and entered judgment on the verdicts for defendant. Plaintiff, seeking a new trial, has appealed to this Court.

Plaintiff first contends that the trial court erred in refusing to affirm the following point for charge. 'It is the duty of a railroad company to give sufficient notice of the train's approach on crossing a much-traveled highway, and to moderate the speed to such rate as is consistent with public safety; and, in determining such reasonable rate of speed, the jury may consider the fact that no flagman was stationed nor gates maintained there. 31 P.L.E. Railroad, Section 167, page 24.' (Point 6.)

Plaintiff argues that the court's refusal to affirm this point In effect eliminated the issue of excessive speed of the train from the jury's consideration. Taking the charge as a whole (as we are bound to do in determining whether or not reversible error was committed in instructing the jury (James v. Ferguson, 401 Pa. 92, 162 A.2d 6901)), we believe that the points of law contained in the above requested instruction were sufficiently and adequately covered by other instructions requested by plaintiff and affirmed by the court. Plaintiff's Point 5--Which was read to the jury--in slightly different language, enunciated the same legal requirements as Point 6 as to the sufficiency of the train's warning in view of the train's speed: 'A railroad's employees in charge of a train are bound to give Timely and sufficient warning of the train's approach to a crossing. Generally, the adequacy of a signal given when approaching a crossing depends on whether warning was given soon enough in view of The rapid movement of the train, but the adequacy of the signal may depend upon whether the signal was given too soon in view of the Retarded rate of speed of the train and In either event the question is whether the warning was timely, in view of all the circumstances.' (Point 5) (Emphasis added.) Plaintiff's Point 4--Which was also read to the jury--stated that, if an engineer apprehends that a person on or approaching a crossing will be in danger, 'it is his duty to slacken the train's speed and, if possible, to stop it in order to avert an accident.' Under the instant circumstances, the trial court did not err in refusing Point 6; In essence, such point was simply repetitive of legal concepts included in Points 4 and 5.

Moreover, plaintiff's counsel contends that 'the lower court further refused to charge that the railroad had breached any duty by not having a flagman or gate or other protective device at the crossing in question * * *.' A careful reading of plaintiff's Point 6, supra, reveals that such point contained no such direct request to the trial court nor did any other point. Point 6 states that the lack of a flagman and gates should be considered on the issue of the reasonableness of the train's speed but did not encompass the question of the breach of any independent duty of the railroad to provide for a flagman or gates. ¹ Furthermore, the relevance of the absence of a flagman and/or gates to the determination of the reasonableness of the train's speed is implicitly covered by plaintiff's Point 5, supra, which was read to the jury as an instruction to consider the timeliness of the engineer's warning, 'in view of all the circumstances'.

Next, plaintiff's counsel stated in his summation to the jury that the defendant should have produced a speed tape from a tachometer which would have established conclusively the speed at which the train was traveling, the production of which would have obviated any necessity for the jury to pass on the credibility of estimates of speed by defendant's employees. Defendant's counsel objected to this argument and asked the court to instruct the jury that plaintiff's counsel had the burden to compel defendant to produce 'at the trial records kept in the regular course of the railroad's business relevant to this case, including any speed tape, if the engine envolved was so equipped. * * *' (Defendant's Point 12) Plaintiff now argues that the trial court erred in reading this point to the jury.

Defendant's Point 12 was clearly correct, if, In fact, plaintiff had produced no evidence at trial that defendant possessed or should have possessed a speed tape from a tachometer. Plaintiff cannot shift to defendant the burden of the production of evidence the existence of which plaintiff has failed to establish. '(a) The party having the risk of non-persuasion * * * is naturally the one Upon whom first falls this duty of going forward with evidence; because, since he wishes to have the jury act for him, and since without any legal evidence at all they could properly take no action, there is no need for the opponent to adduce evidence'; 9 Wigmore, Evidence, § 2487, p. 279 (3d ed. 1940). (Emphasis original.) Plaintiff asserts that the following testimony of the defendant's engineer on cross-examination was sufficient to establish the Existence of a speed tape: ²

'Q. Was the tape examined by you?

A. No, I have no way to get into that tape. I have no authority to touch that tape.'

However, this engineer's testimony, taken in context, points to the opposite conclusion. The cross-examination continued:

'Q. That tape would show your precise speed?

A. If there was a tape there, it would, I imagine. (Emphasis added.)

Q. Was there a tape there?

A. I don't know. (Emphasis added.)

Q. Did you have a tachometer or other recording instrument in the cab of the locomotive?

A. There was a speedometer on the engine, yes.' (A speedometer is different from a tachometer.)

The engineer's testimony clearly demonstrates that he had no knowledge of the existence of a tachometer in his locomotive.

As an alternative to reliance upon the trial testimony, plaintiff now asks this Court to take judicial notice of the fact that the large majority of locomotives in the United States carry tachometers (10 Am.Jur., Proof of Facts, Railroads, p. 37 (1961)), thereby shifting the burden to defendant to produce such a tachometer or explain why this particular train was not equipped with one. However, plaintiff did not request the court below to take judicial notice of such fact; she, therefore, cannot do so for the first time on appeal. Platt v. City of Philadelphia, 183 Pa.Super. 486, 496, 497, 133 A.2d 860, 864 (1957). Moreover, we agree with defendant that plaintiff's citation of the settled principle of law which permits a negative inference to be drawn from a party's failure to produce evidence within its pculiar control (see Tremaine v. H. K. Mulford Co., 317 Pa. 97, 106, 107, 176 A. 212) has no application where, as here, the opposing party has not shown, either by pre-trial discovery procedure or at trial, that such evidence was in defendant's possession.

Plaintiff further urges that the trial court erred in affirming defendant's Point 3, Without qualification, that a railroad has the superior right of travel over an automobile at a grade crossing. Not only is this an accurate statement of the Pennsylvania law (Newhard v. Pennsylvania Railroad Co., 153 Pa. 417, 26 A. 105, 19 L.R.A. 563; Haller v. Pennsylvania Railroad, 306 Pa. 98, 159 A. 10; Anstine v. Pennsylvania Railroad Company, 342 Pa. 423, 20 A. 774, but, when taken in conjunction with plaintiff's Points 3, 4, 5, which were affirmed by the court and which instructed the jury that under certain circumstances a train must stop for a traveler and must always give an adequate warning on approaching a crossing, defendant's Point 3 was in fact qualified.

Neither is there any merit in plaintiff's contention that the trial court erred in reading defendant's Point 13 to the jury. Substantially, Point 13 states that the jury could find contributory negligence on the part of the decedent if it found that he was sitting on the crossing in such a way as to be able to see an oncoming train and had sufficient time to remove himself to safety. Since '(o)ne who crosses a railroad at grade is under a duty not only to stop, to look and to listen before entering upon the crossing but also To continue to look and to listen while traversing the crossing' (Riesberg v. Pittsburgh & Lake...