recognizing “a special duty of care” on the part of a railroad toward motorists at a crossing with “a dangerously limited view”
How later courts described this case
- recognizing “a special duty of care” on the part of a railroad toward motorists at a crossing with “a dangerously limited view”
- unobstructed view possible only by placing vehicle into swath of oncoming train and failure of train to sound whistle
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Mr. Justice Pomeroy:
A reading of the record in this case persuades me that the verdict is against the weight of the credible evidence with respect to the crucial issue of the visibility afforded to the appellee-plaintiff of the westbound tracks and train of the appellant-defendant at the grade crossing here involved.
Appellee testified that the station shelter, a telephone box and particularly trees at the end of the platform interfered with his view to the left, which accounted for his not seeing the train until it was about 60 feet away, when he had come to a stop with the front of his car within the swath of the train. A witness for appellee testified that “you practically have to have your car on the tracks to see to your left.” To the contrary, appellant introduced photographs taken five days after the accident, and engineering plans of the crossing, tracks, and adjacent structures. As the learned judge noted, the photographs were professionally taken and related to “a carefully plotted survey of the station area and tracks with accurate measurements done by a professional surveyor.” These documents were not contradicted or impugned in any way. The pictures, as the majority opinion observes, “indicated that the trees which Fallon implied obstructed his view did not overhang the rails at all.” The plans *160 and pictures show that a motorist could see approximately 530 feet to the left down the westbound track with a clearance of 5 feet between the front of the automobile and the swath of the train, with a 4-foot clearance, the view was increased to 1000 feet. There was no evidence that these dimensions and distances were not accurate. Indeed, the appellee did not testify that he looked to his left when his car was in these positions; only that when he did stop, with the front end of his car in the swath of the train, “I turned my head and saw it [the train] with my left eye”, 60 feet away.
This being the state of the record on this point, the jury’s verdict, which necessarily exculpates appellee of any contributory negligence, is, in my opinion, “so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative so that right may be given another opportunity to prevail.” Cf. Brown v. McLean Trucking Co., 434 Pa. 427, 430 , 256 A. 2d 606 (1969); Austin v. Ridge, 435 Pa. 1 , 255 A. 2d 123 (1969). I thus conclude that the lower court abused its discretion in refusing to order a new trial, and respectfully dissent from the decision of this Court which affirms the refusal.