Hogg v. Bessemer & Lake Erie Railroad , 373 Pa. 632 ( 1953 )

Dissenting Opinion by

Mr. Justice Musmanno:

The crucial test as to legal responsibility in this case is not, according to my opinion, what occurred on the night of August 23, 1949, but what happened during the previous fifteen years which prepared the fatal barricade against which 18-year old Harold Hogg rode to his untimely death.

The lower court stated in its opinion: “There were no flashing lights or illuminating lights at the crossing to disclose the presence of the railroad cars upon the crossing itself. The Railroad Company, through its officials, had under consideration the construction of either one of such devices, for a period of at least fifteen years. Some of the staff officers had recommended such, but the management, after consideration, concluded that such additional precaution was not necessary. Complaints had been made to the officials of the Railroad Company by persons living in the Village of Branchton, and several other accidents had happened, of a similar character to the one now under consideration, although in each case the person involved had failed to stop before coming to the crossing.” (Emphasis supplied. )

As far back as 1934 the unlighted state of the Branchton crossing was a matter of discussion among the officials of the defendant Bessemer & Lake Erie Railroad Company. In the early part of that year, T. C. Whiteman, General Counsel and Safety Director of the railroad wrote to F. R. Layng, Chief Engineer, enclosing a complaint from one Vern II. Kyle about the perilous intersection. On February 10, 1934, the Chief Engineer replied to the General Counsel and Safety Director: “I talked this over with Mr. Johnson this morning, and we both feel that the time will come when some protection should be arranged for, but we are both in doubt as to whether we should press it at this time. We will both think it over and I will take it up again with you later.”

On May 10, 1934, E. J. McGeary, Assistant Superintendent of the railroad, wrote to W. M. Johnson, General Superintendent, — “Recently I was in Branchton and my attention was called to this crossing and a comparison made between it and the Annandale crossing. The latter crossing with flash light signals and practically no rail traffic and Branchton with numerous rail movements and highway traffic increasing, with no flash light signals.”

On April 4, 1941, General Counsel Whiteman notified George Kamerer, Superintendent of Safety and Claims, that in view of the increasing volume of traffic at Branchton crossing, further consideration should be given to the matter of installing protective devices. He added that the operation would be an expensive one but that something would need to be done eventually, since, already, three accidents had occurred at the place in question.

On October 8, 1941, Chief Engineer Layng advised Whiteman that it might be difficult to install flashing lights but he knew of no other method for supplying the needed protection.

On October 9, 1941, Mr. Whiteman replied to Layng: “However difficult it is, if flashing lights could be made satisfactory, we feel we ought to do it.”

On October 15, 1941, Mr. Pflasterer, Safety Engineer, informed Chief Engineer Layng that a preliminary study revealed that the crossing could be given the required protection by the introduction of flashing light signals.

On May 15, 1946, Mr. Snyder, Vice President and General Manager, wrote Chief Engineer Layng that people in the vicinity suggested the lighting up of the crossing at night by overhead street illumination. He specified: “If, after investigation, you find this installation desirable you may proceed to make the installation. If it is not desirable, please indicate why.” On May 26, 1946, Lyang replied: “I do believe that if we go to the expense of flood lighting a crossing from both sides that it would be possible to provide sufficient illumination to do some good providing it be kept in mind that no illumination will be effective in fog.” Layng added in his letter that they should go slow in making the installation because such an improvement might spur requests for similar installations at other points.

This, in brief, represents a cross section of the correspondence that transpired among the officials of the company about a condition that everyone recognized was fraught with extreme peril. But while the officials dictated discursive communications but did nothing to close the gap of danger, the plaintiff’s son on his motorcycle of the future was plunging toward the catastrophe.

It will be recalled that in 1934 the Chief Engineer solemnly wrote that he and Mr. Johnson, the General Superintendent, felt that the time would come when “some protection would be arranged for,” but they both doubted that they should press it “at this time.” By 1946, 12 years later, they still had not pressed it, even though in the meantime three persons had come to grief at this ominous crossroad whose lurking dangers after dusk were hidden by the shrouds of night.

But the warnings had not yet ceased. One day in the summer of 1947, Vern H. Kyle, who lived only 115 feet from the fatal point and who had vainly protested as far back as 1934 about the perils of the Branchton crossing, telephoned the office of the railroad company and notified C. S. Leet, Assistant Manager, that lineman of the railroad company were working at the crossing that day: “. . . He said to me, ‘Do we have the wiring in the depot?” I said, ‘Yes’. He said, ‘Where is it?’ I said, ‘Right across the crossing. I thought I would call you now, because the linemen are there, in order that without too much extra expense they could go ahead and do it, while they are there.’ He said, ‘Well, we will see about it’; but he said, ‘You know we don’t do things that quick.’ ”

Is two years “too quick” to remove a definitely established menace to life and limb? This conversation occurred in the summer of 1947; and in August, 1949, Harold Hogg was killed.

One witness, a James Colosimo, testified that the railroad company knew of this death trap at Branchton even as far back as 1930. He testified that be bad been injured there that year and that when a representative of the railroad called to talk to him about the accident he, Mr. Colosimo, urged that the railroad should install blinker lights: “that would be a real thing to put on the crossing.” The railroad man demurred, saying that because of the “yard there, they would be working practically all the time.” Colosimo said: “that wouldn’t make any difference; as long as the lights were blinking, a motorist would naturally stop.”

The jury found specifically that the Branehton crossing was “peculiar, unusual, extra-hazardous and very dangerous at the time of the accident.” It also returned the finding that the defendant railroad company was “guilty of wanton misconduct.” What was that wanton misconduct?

Coming events cast their shadows before them. It was just as inevitable that a tragedy would some day occur at Branehton as it is that night follows day. It was known that when a freight train filled the crossing at night, the black hulk of the cars would blend with the blackness of the highway and the nocturnal darkness; it was known that because of the rise of the highway to the crossing a vehicle’s lamps would not light up the railroad until the vehicle was only some 20 feet away, when, because of the loose planks and the ashes on the highway, and the short distance for traction to take hold, a vehicle could not stop in time to avoid collision with any cars on the tracks. The safety directors, the safety engineers, the superintendents, the managerial staff of the railroad knew all this for fifteen years and did not lift a single bulb to illuminate and warn of the peril — simply because of the expense involved in supplying life-saving beacons and because they did not want to be rushed.

' Wanton misconduct is not restricted to rapidly moving crises, e.g., a locomotive bearing down on a stalled vehicle, the death-defying speed of an automobile on a dangerous curve, the hurling of a missile into a crowd of people. It does not need to strike with the celerity of a lightning flash. There can be wanton misconduct in the lethargic advance of a steam roller or in the methodic construction of a toppling wall. If the officials of the railroad knew of a defective railroad switch for fifteen years and did nothing to repair it, and a wreck occurred, the liability would arise not from the wreck but from the long continued, reckless, wanton and wilful disregard of the safety of the public.

“The duty of a railroad company not to do any wilful or wanton act is owing to the public generally, and is applicable in favor of anyone who happens to be in such position as to be the sufferer by the violation of the duty.” (44 Am. Jur. 639, §422; Restatement, Torts, Sec. 500, p. 1295, comments (c) (d).)

When the jury found, on competent evidence, that the defendant company was guilty of wanton misconduct, it did not matter whether the plaintiff’s decedent Avas or was not negligent. The fact that Harold Hogg was familiar with the crossing and had crossed over it in night and day, emphasized all the more the camouflaged appearance of the cars against the background of the night and the darkness of the black top roadway. One Avho is deceiAred by a masked danger cannot be convicted of contributory negligence. Travellers on the highway have the right to expect that drawbridges will be in place, that road excavations will be covered up and that railroad trains at crossings will be announced with one of various types of warning: a ringing bell, a flashing light, a swinging lantern, or a verbal admonition. The necessity of movement on our thoroughfares is just as important as the requirement of stoppage at indicated places. Furthermore, no witness testified that Harold Hogg did not stop before proceeding to cross the tracks. Thus, the plaintiff is entitled to have adjudged in his favor the presumption that his son did stop, look and listen before entering on the railroad right of way. “When a person loses his life in a crossing accident there is a presumption that such person at the time of the accident was exercising due care.” Harris v. Reading, 325 Pa. 296, 301, and cases there cited.

I would reverse the judgment of the lower court and reinstate the verdict of the jury.