Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
These cases arise out of a collision between an automobile and a trolley car. The driver of the automobile was Benjamin D. Fenimore. His five-year old son, Benjamin John Fenimore, Mrs. Florence T. Smith and Mrs. Abigail Sterner were the other occupants of the automobile. As a result of the accident the Fenimore child was killed. All the other occupants of the automobile were injured, and the automobile was demolished. In No. 9721, Mrs. Sterner sues the Philadelphia Transportation Company (P.T.C.).In No. 9720, all the other occupants of the automobile and its owner, Francis A. Smith, sue the P.T.C. Included also is a wrongful death action brought by Fenimore as administrator of his son's estate, and a claim by the parents for expenses and estimated loss of the child's earnings during his minority. In each case the defendant, P.T.C., joined Fenimore as a third party defendant. In the Court below the jury found that the operator of the trolley car was negligent and that Fenimore, the driver of the automobile, was not negligent. Damages were awarded to all the parties plaintiff, and the defendant, P.T.C., appeals. All the operative facts occurred in Pennsylvania and the federal court has jurisdiction only by diversity of citizenship. Pennsylvania law, of course, controls. Erie Railroad v. Tompkins, 1937, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487.
The material facts are largely undisputed, but where there is any doubt we state those supported by the evidence favorable to the plaintiffs, as we must after a verdict against the defendant. The collision occurred in the early afternoon of July 12, 1946, at a grade crossing on the Industrial Highway between Philadelphia and Chester, Pa. The land in the vicinity of the crossing is open and unsettled. The highway is divided by a grass island, and two lands of traffic run in each direction. After crossing the east bound lane, the trolley tracks run for 800 feet in the grass island between the dual sections of the road, converging upon and then crossing the westbound lane in which the Smith car was travelling. The highway surfacing at the crossing is the same as that of the rest of the road, and the crossing is level so that the tracks are not conspicuous. On the day in question the road was dry and visibility clear.
The Smith automobile was proceeding toward Chester. It was following a fourton truck which was in the right hand lane. The Smith car was in the left land with its front wheels approximately abreast of the rear wheels of the truck. The truck had high solid sides which would prevent the driver of a car on the left from seeing anything to the right of the truck. Fenimore could not, therefor, see the two standard crossing warning signs posted at the right of the highway within 225 feet of the crossing. Fenimore was driving at approximately 35 miles an hour. The evidence shows that the car and the truck proceeded this way for about 1200 feet before reaching the trolley crossing. As they approached the crossing the truck slowed down and Fenimore moved ahead to pass. The truck stopped at the crossing with the passenger car abreast and moving to pass without slowing down. The trolley was coming across from the right at 20 to 25 miles per hour. No warning signals were given, nor was speed reduced prior to collision. Since the tracks cross the highway at an oblique angle, the collision was closer to head-on than to a right angle, and, of course, the impact was a severe one.
The appellant makes three main points. It says, first, that as a matter of Pennsylvania law, the driver of the automobile was negligent, and second, that the trolley motorman was not. If it is unsuccessful in these contentions, the appellant asks, third, for a new trial on grounds of error in the charge to the jury and improper remarks of counsel.
Considering first the negligence of the trolley motorman, we think there was clearly sufficient basis in fact for the jury's finding. The motorman was approaching a heavily travelled four-lane dual highway. He must have seen the truck approaching in the right hand lane of the highway. There were two lanes of westbound traffic, and he should clearly have been warned by the solid sides of the truck that there could well be automobile traffic in the left lane which he could not see and which could not see him. There is also some probability that he could have seen the wheels of the Smith car by looking under the truck chassis. However that may be, the fact that he crossed the highway as he did in these circumstances is certainly basis for a jury finding of negligence.
If there is basis for finding P.T.C. negligent, and the jury has found it negligent, that finding takes care of the claims of several of the litigants herein. It requires an affirmance of the judgment on behalf of Mrs. Sterner, a passenger. It likewise requires affirmance of the judgment for Mrs. Florence T. Smith, another passenger, and for her husband, John M. Smith, who sued for the damages sustained because of the injury to Mrs. Smith. It also requires an affirmance of the judgment for Francis A. Smith, owner of the car, for his property loss. There is no suggestion of negligence on the part of Mrs. Sterner or any of the Smiths, nor is it contended that negligence on the part of Fenimore is attributable to any of them.
The critical and difficult point of the case involves the answer to be given to the defendant's earnest and forceful argument that Fenimore himself must be held guilty of contributory negligence, notwithstanding that the jury has found that he was not guilty. If that jury finding were to be set aside, Fenimore could not recover for his own injuries, nor for the losses caused by the death of his son.*fn1 Also P.T.C., as third-party plaintiff, would be entitled to a judgment against Fenimore for contribution toward the amounts paid by it to the other plaintiffs.*fn2
We proceed then to the question of Fenimore's conduct as he approached the crossing. Defendant makes much of the fact that when the truck, which was travelling in the light hand lane, stopped, Fenimore should have stopped also. The stopping of the truck is supposed to be, according to defendant's argument, some sort of warning to the driver proceeding alongside it. We do not see the force of this argument when we remember that this was a divided highway with two lanes of travel open in the direction in which the vehicles we are talking about were proceeding. The automobile had a perfect right to pass the truck, even at a grade crossing.*fn3 The truck could have stopped for any one of many reasons which would have had no bearing at all upon Fenimore's exercise of due care in moving ahead. The question at best is one of fact, properly left to the trier of fact.
P.T.C. also makes a vigorous attack upon Fenimore's conduct in other respects. It calls attention to the highway signs which undoubtedly were present at the right of this highway. These signs warned of the crossing, and the Motor Vehicle Code provides that where signs thus appear the motorist shall approach at a speed of twenty miles an hour or less.*fn4 This and other arguments based upon Fenimore's failure to see the trolley and stop for it all ignore the fact that two lanes of this highway were open to westbound traffic and that the traveller was not restricted to any one. There was nothing negligent about going along, as Fenimore did, to the left of the truck. But the fact that he was at the left of the truck could well have been found by the jury to have kept him from seeing the signs warning of the trolley crossing. And if he was not negligent in failing to see the signs or to know that he was approaching a crossing, we do not think it was negligence per se in that he went faster than the 20 mile speed limit for cars approaching railway crossings. Language of the Pennsylvania court in Kindt v. Reading Co. quoted below is in point. So, too, the language in Comment, c, Section 286, Restatement Torts.
Many Pennsylvania cases have been cited to establish that trolleys have the right of way at crossings.*fn5 Those decisions bind use, of course, if they are applicable. Likewise, Pennsylvania decisions have been cited to us to show that darkness and unfamiliarity with the road are no excuse for a driver who does not discover a crossing and is hurt by a collision thereon.*fn6 Those decisions also bind us if they are applicable.
It is clear, however, that the fundamental test for negligence is the failure to exercise reasonable care, not in the abstract, but under the particular circumstances.*fn7 As lawsuits are brought and decided, rules for particular situations tend to become crystallized; courts hold that under an enumerated set of circumstances a person's conduct is or is not failure to exercise reasonable care. When the rule is thus crystallized, the standard of conduct has been set and is no longer open to finding by a jury. But it must be borne in mind always that the crystallization of general principle into specific rule is one for the special circumstances for which the rule is declared.
In this case we have a situation different, we think, from that involved in the cases cited to us by the defendant. Here there was a divided highway, as already said above, with two lanes equally open to westbound traffic.*fn8 The only official sign of the approach to the railroad crossing was on the right hand side where it was hidden from Fenimore's view by the truck. Both the truck and Fenimore were where they had a perfect right to be. The crossing was not a conspicuous one in any way. It consisted of four slits crossing this macadam highway in which rails were set. There were no gates or signals or other markers. While it is true that a court or a jury months or years after the accident ...