Max Rosenn and James Rosen, Circuit Judges, and VanArtsdalen, District Judge.
VANARTSDALEN, District Judge.
Edward J. Mohar, Jr., plaintiff's decedent, was killed when an automobile that he was driving on a public highway in Pennsylvania was struck by a railroad locomotive at a grade level crossing. Plaintiff brought action under the Wrongful Death and Survival of Actions statutes of Pennsylvania,*fn1 basing jurisdiction on diversity citizenship.
At the conclusion of plaintiff's case, defendant's motion for a directed verdict pursuant to Rule 50, Federal Rules of Civil Procedure (1970), was granted, the court being of the opinion that under Pennsylvania law, plaintiff's decedent was contributorily negligent as a matter of law. A summary of the evidence produced on behalf of plaintiff discloses the relevant facts.
Decedent was traveling alone in a general northerly direction on Harbor Road, which he entered from an intersection about 400 feet from the place of collision. A single diesel locomotive, traveling in reverse and going toward the east at a speed estimated by one witness to be about 50 miles per hour or better and "going faster than they ordinarily go," approached the crossing, without sounding any whistle, horn, bell or other audible warning. The railroad tracks crossed the public highway at approximately a right angle. There were no warning lights at the crossing but a cross-buck "railroad crossing" sign was located on Harbor Road immediately south of the crossing, and farther south was a highway railroad crossing warning sign.
Shortly before the day of the collision, Harbor Road had been relocated about fifty feet eastward in order to approach a newly constructed bridge that crossed a stream immediately north of the railroad crossing. At the time of the collision, the old trestle bridge formerly utilized by Harbor Road, was in the process of being dismantled, and metal portions of the bridge were being cut with acetylene torches, causing some smoke in the area. Heavy construction equipment was being operated in the vicinity along the river bank.
The collision occurred on the afternoon of December 16, 1966, between 1:00 and 2:00 o'clock. It was a cloudy day. Trees and underbrush extended along the west side of Harbor Road to within a short distance of the railroad crossing, thereby at least partially obstructing the view along the railroad tracks. The tracks to the west of Harbor Road curved to the north in an arc, whereby the view along the tracks, regardless of the point of vision, would be limited by the line of sight of the curve. One witness testified that a person would have to be within ten feet south of the tracks to obtain a clear view to the west along the tracks, and even then the view would be limited to about three hundred feet.
There was no eyewitness to the actual collision. Six workmen engaged within the general area testified. None heard any audible warning signal of the approaching locomotive, although they were in a position to hear.*fn2 The engine stopped at a distance estimated by witnesses varying from six hundred feet to four hundred yards east of the crossing; and the automobile about one hundred fifty feet east of the crossing.
Photographs taken within a few days after the fatality were introduced into evidence showing the immediate area of the crossing. Two aerial photographs taken more than one year after the collision were also received into evidence. About one month after the collision, some of the trees and underbrush shown in the ground photographs were removed. By the time the aerial photographs were taken, the old trestle bridge had been completely removed.
Defendant does not dispute that there was ample evidence to submit the question of defendant's negligence to the jury. A railroad has a duty to warn of an approaching locomotive or train at a grade level crossing, the adequacy of such being a matter for the jury under all of the surrounding circumstances. The warning must be timely and sufficient. Miller v. Pennsylvania R. R., 368 Pa. 507, 84 A.2d 200 (1951); Anstine v. Pennsylvania R. R., 342 Pa. 423, 20 A.2d 774 (1941). In addition to the testimony that no audible signal was given, and no railroad crossing lights were located at the crossing, there is testimony from which a jury could find that the locomotive, traveling in reverse, was going at an unusual and excessive speed. Although high speed of a railroad train in a rural area is not in and of itself evidence of negligence. Ealy v. New York Cent. R. R., 333 Pa. 471, 5 A.2d 110 (1939), it may be negligence when coupled with excessive and unusual speed. Haller v. Pennsylvania R. R., 306 Pa. 98, 159 A. 10 (1931).
The sole issue on this appeal is whether the decedent, as the driver of the automobile, was contributorily negligent as a matter of law. Some review of the Pennsylvania rule that requires a traveler to stop, look and listen before proceeding across a grade level railroad crossing of a public highway is appropriate.*fn3
Development of the so-called "stop, look and listen" doctrine originated over a century ago. In Reeves v. Delaware L. & W. R. R., 30 Pa. 454, 72 Am. Dec. 713 (1858), the court determined that a traveler on a public highway "is bound to stop and look out for trains." Although that case, and other early cases left the determination of whether plaintiff was contributorily negligent for the jury,*fn4 the standard of care to stop and look soon became absolute, and failure to do so was negligence per se. North Pa. R. R. v. Heileman, 49 Pa. 60, 88 Am. Dec. 482 (1865). The next logical requirement was that one, having stopped, must also listen. This was engrafted into the rule by 1867 in Hanover R. R. v. Coyle, 55 Pa. 396 (1867).*fn5 In Pennsylvania R. R. v. Beale, 73 Pa. 504, 13 Am. Rep. 753 (1873), the court stated that the duty to "stop, look and listen" was an "unbending" rule of law and failure to comply with any one of the three absolutes constituted negligence as a matter of law. This "unbending" rule of law continues unchanged to this day. Tomasek v. Monongahela Ry., 427 Pa. 371, 235 A.2d 359 (1967); Wilson v. Pennsylvania R. R., 421 Pa. 419, 426-427, 219 A.2d 666 (1966); Yolton v. Pennsylvania R. R., 368 Pa. 429, 84 A.2d 501 (1951).
A further and often insurmountable hurdle to recovering damages for a person injured or killed while crossing railroad tracks originated in the oft-quoted language in the very brief per curiam opinion of Carroll v. Pennsylvania R. R., 12 W.N.C. 348, 349 (1882): "It is in vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive." Thus was born the "incontrovertible physical facts" doctrine convicting one of contributory negligence as a matter of law, if, as stated in Bornscheuer v. Consolidated Traction Co., 198 Pa. 332, 334, 47 A. 872 (1901), the evidence establishes "with the certainty of an infallible mathematical test" that the collision could not have happened but for the carelessness of the claimant because "it would be a travesty upon justice to allow a jury to consider such testimony, and a license to them to render a false, ...