McLaughlin, Hastie and Van Dusen, Circuit Judges. McLaughlin, Circuit Judge (dissenting).
VAN DUSEN, Circuit Judge.
The plaintiff in this diversity action appeals from a jury verdict in favor of the defendant. Clyde D. Sturdevant ("Sturdevant") died from injuries sustained in a railroad grade crossing accident on May 2, 1968, when his car, traveling north on Route 957, collided with an eastbound train of the defendant at one of two tracks at a crossing near Lottsville, Warren County, Pennsylvania. At the time of the accident, a driver approaching this crossing from the south on Route 957 would first pass a crossbuck warning sign on the right side of the road indicating "two sets of tracks," then cross a sidetrack and travel approximately 80 feet to the main line track of the defendant railroad, and finally, after crossing the main line track, pass a crossbuck warning sign on the left side of the road alerting southbound motorists of the railroad crossing. On the left side of Route 957 (going north), there was an inoperative feedmill close to the side tracks which obscured the northbound driver's vision to the west until he was within 60-65 feet of the main track, that is, until 15-20 feet after he had crossed the side track. At this point 60-65 feet south of the main track, the driver would have a clear view of a train on the main track, although he would not be able to see the actual main track at the crossing until he was 8-12 feet from it because of an 8% grade in the road and a slight "bump" at the point that Route 957 crossed the main track.
On the day of the accident, Sturdevant was driving at daybreak (approximately 6:10 A.M.) in foggy weather with his lights on. He had made this same northbound trip almost daily for the preceding two to three weeks. While Sturdevant approached the crossing, an irregularly scheduled eastbound train of the defendant was proceeding on the main track at a speed of approximately 35 miles per hour, its headlight on, its horn sounding, and its bell operating. The engineer in this train saw the lights from Sturdevant's car when the train was about 900-1000 feet west of the crossing, but did not decrease the train's speed for some time because Sturdevant's car appeared to be slowing down as it approached the main track.*fn1 When the train was approximately 20-25 feet from the crossing, however, the engineer, fearing that a collision was possible, began to sound quick blasts on the train's horn and applied the emergency brakes. But the engineer testified that Sturdevant's car did not stop before crossing the main track and was struck by the train as it entered the main line track.
On this appeal, plaintiff contends that the district court erred in failing to charge the jury that defendant railroad could be liable for wilful and wanton negligence on the basis of either (a) its failure to construct a cross-buck sign or similar warning device between the sidetrack and the main track to warn northbound motorists of the presence of the main track, or (b) the failure of its engineer to take action to stop the train involved in the collision until it was approximately 25 feet west of the railroad crossing. These arguments are without merit. The district court, 319 F. Supp. 732, did not abuse its discretion in concluding that there was not sufficient evidence in the record from which the jury could have found the defendant guilty of wilful and wanton negligence.
The plaintiff also argues that the district court committed error in its charge to the jury concerning Pennsylvania's stop look and listen rule. We are convinced by an examination of the record (including the charge to the jury) and the cases cited by the parties*fn2 that the district court's charge on this issue was not error, since the charge, read as a whole, left it to the jury to decide whether Sturdevant should reasonably have stopped before crossing the main track.*fn3 The other arguments advanced by the plaintiff have been considered and rejected.
The judgment will be affirmed.
McLAUGHLIN, Circuit Judge (dissenting).
As I see it, the trial court erred in failing to charge the jury that the defendant railroad could be found guilty of wilful and wanton misconduct by its failure to place a crossbuck sign or other similar warning device between the two sets of tracks, thus alerting northbound traffic of the situation it was approaching. If such conduct were found by the jury it would remove the bar of contributory negligence from the plaintiff-appellant.
It was shown that there had been two accidents at this crossing within the last ten years and that appellee knew of them. The townline track was rarely if ever used in the two years preceding the accident. However, crossbuck signs which had previously been placed before the mainline track as a warning to northbound traffic had been removed and the present sign installed in front of the townline track. The latter sign advises motorists of two sets of track but the construction of the road is such that the mainline tracks are not visible until a person is almost on top of them - eight to twelve feet away. If one were to cross the townline tracks and become aware of a train coming on the mainline track, not being able to see that track there was no indication as to where he could safely stop. ...