Burd v. Pennsylvania Railroad

164 A.2d 324, 401 Pa. 284, 1960 Pa. LEXIS 525

• Court: Supreme Court of Pennsylvania
• Decided: October 10, 1960
• Docket: Appeals, Nos. 6 and 7
• Status: Published

Opinions

Opinion by

Mr. Justice Benjamin R. Jones,

These are two appeals from an order of the Court of Common Pleas of Dauphin County granting a new trial in two separate trespass actions¹ which arose out of a grade crossing accident on September 19, 1952.

The jury returned a verdict of $60,000 for Burd and $15,000 for Ulrich² and against the Pennsylvania Railroad Company. Motions for judgment n.o.v. and for a new trial were filed by the Railroad in each case. The court overruled the motions for judgment n.o.v. and granted new trials on the ground that the verdicts were “against the preponderance of the evidence”. From this order awarding the Railroad new trials, Ulrich and Burd have appealed.

The appellants, Denton B. Burd and Robert P. Ulrich, employees at the Olmstead Air Force Base, Middletown, Pa., at about 8:33 a.m. (EDST) on September 19, 1952 were engaged in hauling a load of steel by tractor-trailer southwardly on Route 441 from that base to Marietta. Ulrich was the operator of the vehicle and Burd was seated in the right-front seat beside him. As they proceeded eastwardly over a grade crossing located south of the Borough of Royalton, Dauphin County, where Route 441 crosses over the tracks of the Columbia Branch of the Pennsylvania Railroad Company,³ the tractor-trailer was struck by a southbound freight train which consisted of 47 box, tank and refrigerator cars propelled by an electric locomotive.

The tractor-trailer, which had an over-all length of 64 feet, was struck at a point 14 feet from the rear of the trailer. Both Burd and Ulrich had traveled the route on a number of prior occasions and were familiar with the crossing. Under normal weather conditions there is an unobstructed view in excess of fourteen hundred feet looking north — the direction from which the train approached — from the crossing. Fourteen hundred feet north of the crossing was a whistle sign erected on a catenary pole and the tracks run in a straight line from that sign to the crossing. A “Stop, Look and Listen” sign guarded the crossing. At the time of the accident it was daylight and the weather was rainy.

According to the testimony of the engineer and fireman, when the train was 100 to 150 feet past the whistle sign,⁴ the engineer gave four blasts of the whistle, — two long, a short and a long — , and at the same time opened the automatic valve which rang the bell continuously to the crossing. Their testimony fixed the speed of the train at between 20 and 23 miles per hour and that of the truck at 25 miles per hour. They also testified that the tractor-trailer slowed down and then started across the tracks without coming to a stop. The engineer further testified that, at a point 250 feet from the crossing, he first observed the tractor-trailer proceeding southwardly ahead of him on the highway; that when he was 100 feet from the crossing he saw the tractor-trailer enter the crossing, whereupon he applied the emergency brakes. The train stopped, according to Ms testimony, 350 feet south of the point of impact.

In addition to this evidence concerning the appellants’ failure to stop at the crossing, the Railroad offered written statements given to an investigating officer of the Olmstead Air Force base. In these statements Ulrich and Burd both stated that they did not stop before entering the crossing. Burd, in his statement, said, “We didn’t come to a full stop as we were making the turn at the meatpacking plant. We came to a point where we shifted into low gear and I would say that if it would have been necessary to stop that we could have stopped at two feet.” Ulrich, in his statement, said, “I do not remember whether or not I made a full stop before I went up on the crossing. I don’t think I did ... I don’t think I was to a full stop, but I do know I slowed down.” The statements further indicated that Ulrich was watching the road ahead of him and looking beyond the railroad tracks at the hills and that it was Burd who directed Ulrich’s attention to the presence of the train.

The testimony of the engineer and fireman as to the warning signals was corroborated by other witnesses. Two brakemen, riding backwards on the rear of the locomotive, testified that they heard the blasts of the whistle. They testified that these blasts consisted of the sequence, two longs, a short and a long. They did not hear the bell. A witness living in the Borough of Royalton north of the whistle sign and in sight of the tracks testified that he was on his roof fixing the antenna of his television set at the time and that he heard the blasts of the whistle and bell. Another witness, the track foreman, testified that he heard the train’s warning signal being given and the emergency brakes being applied.

There was also testimony on the question of visibility. The operator of the signal tower 2,000 feet from the crossing testified that the crossing could be seen at the time from the tower. The witness who was fixing the television antenna testified to the effect that he could see the crossing over 1,400 feet away. The track foreman testified he saw the train at the crossing, immediately after the accident, more than 1,400 feet away. One brakeman testified he could see back along the train 20-25 ear lengths and the other said he could see half the length of the train. The testimony of the U. S. Weather Bureau at Harrisburg Airport showed that, at 8:38 a.m. (EDST), it was. raining and that the visibility was 2y2 miles. The weather report taken at the Middleton Air Force base — one and one-half miles north by roadway of the crossing — at 8:29 a.m. (EDST) on September 19, 1952, showed that it was then raining and that visibility was five miles. Such was the evidence offered by the Railroad.

Burd and Ulrich testified that the tractor-trailer stopped when the front was five feet west of the southbound track. They testified that this was the usual place for them to stop and that they had a full view of the tracks to the north. Each testified that the windows were down and that they heard no whistles. Burd testified that he was purposely observant and, 'being the first to notice the train, called it to Ulrich’s attention. Their version of the occurrence was that after Ulrich had come to a complete stop he put the tractor in low gear and proceeded to cross the crossing when the train, traveling south, came out of the mist or haze 300 feet north of the crossing and hit the trailer at a point 14 feet from the rear.

The only other witness to testify on appellants’ behalf regarding the warning signal was a veterinarian, Dr. Polino, who happened to be engaged in a conversation at a meat-packing plant situated near the crossing on the west side of the highway. He testified that he did not hear any signals from the train but that he was not paying any particular attention to them.⁵ He testified that it was raining, a dark day, and that visibility was open. Another witness, who supervised the taking of pictures 1% hours after the accident, testified that it was intermittently hazy and that, at periods, the visibility was 300 feet. The pictures themselves, however, revealed that at least at the time they were taken, although raining, the visibility was clear.

“It is a well settled principle of law that the granting or refusal of a new trial is within the sound discretion of the trial court and this Court will not reverse the trial court unless the record shows that this discretion was clearly and palpably abused.” Luterman v. Philadelphia, 396 Pa. 301, 152 A. 2d 464; Streilein v. Vogel, 363 Pa. 379, 69 A. 2d 97; Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 64 A. 2d 829.

We have examined this record and find no abuse of discretion or error of law on the part of the court .below. The court correctly held that the weight of the evidence established that adequate warning was given, that there was visibility from this railroad crossing northerly in excess of fourteen hundred feet and that Ulrich and Burd did not stop at the crossing. As the court below stated in its opinion, “this conclusion . . . [was] based upon the various factors in the evidence . . . enumerated. The testimony of [Burd and Ulrich stands] alone on the essential and dispositive features of this case. They are contradicted not only by the employees of the railroad company who are interested witnesses, but in important aspects are contradicted by their own declarations and by testimony of disinterested witnesses. There [was] weighty contradiction of [Burd’s and Ulrich’s] version of this accident in all of the important aspects of this case. Their statements [were] lacking in corroboration except as to one phase, viz., the negative evidence of Polino [the veterinarian] as to warning. He was not being attentive to the approach of the train, and therefore hardly in a position to know what had transpired in the matter of giving signals of the approach of this train, and even he testified positively that when he went to the scene there was open visibility.”

As the Superior Court said in Venchik v. Penna. R. R. Co., 143 Pa. Superior Ct. 438, 443, 18 A. 2d 118: “ ‘. . . it has been uniformly held that where the evidence to establish lack of proper care is negative only, it is overcome by the positive evidence to the contrary, though the latter comes from the mouths of defendant’s witness, and, under such circumstances, the question is not one for the jury to pass upon, where the physical facts corroborate their testimony (Anspach v. R. R., 225 Pa. 528; Keiser v. R. R., 212 Pa. 409; Knox v. R. R., 202 Pa. 504; Zotter v. Lehigh Valley R. R. Co., 280 Pa. 14), which simply means that under such circumstances, the negative testimony, being controverted, does not amount to more than a scintilla, and therefore cannot prevail to establish an essential fact’ ”: Grimes v. Penna. R. R. Co., 289 Pa. 320, 137 A. 151; Craft v. Hines, Dir. General, 272 Pa. 499, 116 A. 379; Haller v. Pennsylvania R. R., 306 Pa. 98, 159 A. 10.

It is not the province of the court to resolve conflicts in the testimony or to usurp the function of the jury, but it is the duty of a trial court to pass upon the weight of the evidence and to grant or withhold a new trial accordingly. Edelson v. Ochrock, 380 Pa. 426, 427, 111 A. 2d 455; Hershey v. Pittsburgh & West Virginia Railway Co., 366 Pa. 158, 162, 76 A. 2d 379. Mr. Justice Cohen, speaking for this Court recently in Kiser v. Schlosser, 389 Pa. 131, 132 A. 2d 311, said: “True it is that the assaying of the credibility of witnesses and the resolving of conflicts in their testimony are for the jury. But it is equally true that the trial judge may not hide behind the jury’s verdict; he has a duty to grant a new trial when he is convinced that the judicial process has resulted in the working of an injustice upon any of the parties.” In Bellettiere v. Philadelphia, 367 Pa. 638, 613, 81 A. 2d 857, we said: “ ‘One of the least assailable grounds for the exercise of such power [to grant a new trial] is the trial court’s conclusion that the verdict Avas against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded . . .’”

We are fully satisfied that the court beloAv did not abuse its discretion in aAvarding a new trial to the Railroad in each case.

Order affirmed.

1 Both actions were consolidated for purpose of trial.

2 Ulrich, joined by the Railroad as an additional defendant in Burd’s action, was cleared of all liability by the jury.

3 The grade-crossing and highway Route 441 can be briefly described at that point as a diagonal crossing of the two tracks of the Railroad with the highway proceeding in a southeastwardly direction across the tracks which, at that point, run almost due north and south forming an elongated acute angle with the apex of the angle at the railroad crossing.

4 The engineer testified that the train had been stopped at a signal tower 2,500 feet north of the crossing and proceeded only after the signal to do so was given.

5 This witness had been in conversation and he could not at the time of trial recall whether he heard anything or not. “Q. Did you hear any evidence of the approach of the defendant’s train prior to the crash? A. No, sir, not that I can recall. Q. Would you state whether there was one blown? A. Not that I Know of, not that I heard. Q. Was there any bell rung or horn blown that you heard? A. Not that I icas aware of.” That he might have heard it but, because of his preoccupation in conversation, can not now recall it is indicated by the following colloquy: “Q. In other words, you weren’t paying attention to what was occurring on the outside? A. No, sir.”