Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.
This is an appeal by both defendants from a judgment against both in the amount of $297,500 entered after trial before Judge Bicks and a jury. Plaintiff Woodington, a Pennsylvania Railroad engineman, sustained serious injuries when the freight train on which he was then acting as fireman collided with a six-wheel, motor-powered crane weighing more than 24 1/2 tons, which stalled on the railroad tracks at the Longs Road grade crossing near King of Prussia, Pennsylvania. Plaintiff brought this action against the Pennsylvania Railroad under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., and against Groves at common law for negligence, invoking the diversity-of-citizenship jurisdiction of the court.
On the day of the accident Woodington's 67-car freight train was traveling east through a sparsely settled area on a double-track line which curves toward and then crosses Longs Road, a littleused spur road connecting two highways. The crossing was guarded by standard reflector-type, cross-buck warning signs, which had been installed under an order of the Pennsylvania Public Utility Commission after a public hearing upon the railroad's application to close off the crossing entirely. From a safe position clear of the crossing there is a view of the tracks toward the west, the direction from which the train approached, and a reciprocal view from the train to the crossing variously estimated by witnesses as from 700 feet to one-half mile.
The crane, which was equipped with a 20-foot boom extending ahead of its cab, approached the railroad tracks and stopped about 40 feet away from the first rail. After waiting for another freight train and engine to clear the crossing, the crane operator, directed by his assistant standing outside the crane on the crossing, began to move the heavy vehicle slowly over the crossing. While in the process of moving over the tracks, the crane stalled; and efforts by the operator to start it again were futile.
Woodington's train, then being operated by the fireman, McDonald, was approaching at a speed variously estimated at from 30 to 50 miles per hour. Fifty miles per hour was the speed authorized by the railroad company in that section. McDonald, although acting as a fireman on this run, had had long experience as an engineer. There was testimony that he blew the customary warning whistle at the eastbound whistle board approximately 1470 feet from the crossing. Woodington testified that he could first see the crane after the train rounded the curve at a distance of about 800 feet from the crossing. He thought the crane was then still moving forward. The crane operator, however, estimated that it was stalled on the tracks from a minute and a half to two minutes. McDonald promptly applied the brakes, which functioned properly; but the train was unable to stop before crashing into the heavy crane. The crane operator jumped to safety shortly before the collision, but Woodington received serious, and McDonald fatal, injuries.
For several months before the accident defendant Groves had been engaged in construction work on the Pennsylvania Turnpike and had used the crane in connection with this work. Because of its large bulk the crane was prohibited by the Pennsylvania Vehicle Code from being moved on the highways without a special permit issued for a single trip by the Secretary of Highways, subject to certain regulations and conditions prescribed in the permit.*fn1 The regulations required the permittee to follow the route prescribed by the highway officials, and stated that nothing in the permit should be construed to authorize crossing railroad tracks at grade without first notifying and making proper arrangements with the railroad company. At the time of the accident the crane was being operated without the required permit. Though it was crossing at grade, this was not necessary; the underpass for State Highway Route 23 is about 300 yards west of the Longs Road crossing, and beyond this underpass is a vehicular bridge over the Pennsylvania tracks at Croton Road.
There was testimony that the Pennsylvania Railroad had an established procedure under which, if it were notified of intended movements of heavy equipment over grade crossings, it would hold the equipment at the crossing until there was a suitable interval between trains, then set block signals against trains in both directions, and permit the equipment to cross under the supervision of a railroad employee. Groves gave no notice to the railroad of the intended crossing which resulted in this accident, and the special procedure was not invoked.
Groves' Vice-President McKay, who was in charge of the project to which the crane was assigned, testified that on his project he would sometimes take a chance and move a vehicle without getting a permit; if he were caught he would pay the fine and if not he would escape paying the permit fee. Groves' Vice-President Klock, who was in charge of another Groves' highway project in the area, testified that he never permitted his overweight vehicles to move without a permit and, before crossing railroad tracks at grade, communicated with the railroad company, which then set a time when it was safe to cross.
Several days before the accident the crane had been moved from McKay's project at Eagle, Pennsylvania, to Klock's project at Conshohocken. For that movement a permit was obtained from the Pennsylvania Department of Highways which required the crane to go by way of the Route 23 underpass, so that it would not go over the Pennsylvania tracks at grade. On that trip the crane passed safely through the underpass after the crane operator and his assistant turned the boom around. On the return trip from Conshohocken to Eagle no permit was obtained; and, in order to save the trouble and possible damage to the vehicle involved in reversing the boom, the operators used the Longs Road grade crossing instead of the underpass prescribed by the Department of Highways. There was further evidence that the crane had had engine trouble prior to the accident and had stalled on several prior occasions; a minor repair was made on the morning of the accident.
Fireman McDonald's widow and executrix brought an action for his wrongful death resulting from this same accident in the federal district court in Pennsylvania. The jury there returned a verdict against Groves, but in favor of the Pennsylvania Railroad. McDonald's appeal from the verdict in favor of the Pennsylvania was dismissed as defectively raised, but the Third Circuit affirmed the judgment against Groves. McDonald v. Pennsylvania R. Co., 3 Cir., 210 F.2d 524.
Appeal of S. J. Groves & Sons Co., Inc.
In the matter of Groves' appeal we reach the same result as the Third Circuit, McDonald v. Pennsylvania R. Co., supra, 3 Cir., 210 F.2d 524, 530, and accept the analysis made by that court of the arguments presented by Groves, the more significant of which are similar to those offered here. The court there said: "In the case at bar a man was killed by reason of a senseless accident caused by the indifference of the employees of a large contracting company, reflected by at least one of its officers, to the laws of Pennsylvania governing highway traffic." Indeed, there was more than sufficient evidence to justify submission of the case to the jury. Thus the jury could predicate Groves' negligence on one or more of four factors: (1) failure to secure the permit required by the Pennsylvania Code, see Jackson v. Blue, 4 Cir., 152 F.2d 67; 2 Restatement, Torts § 286 (1934); (2) failure to notify the railroad authorities of its intention to take this crane over the grade crossing; (3) choosing the grade crossing, rather than the underpass, as a route to move its crane, see Starovetsky v. Pennsylvania R. Co., 328 Pa. 583, 195 A. 871; Tharp v. Pennsylvania R. Co., 332 Pa. 233, 2 A.2d 695; Simpkins v. Pennsylvania R. Co., 334 Pa. 1, 5 A.2d 103; Scurco v. Kart, 377 Pa. 435, 439, 105 A.2d 170; and (4) stalling the crane at the crossing.
The Pennsylvania statute was intended both to prevent damage to highways and to promote traffic safety. Had Groves obeyed the statute selected the safer route, or followed the railroad's special crossing procedure, the jury could reasonably infer that no accident would have occurred. It could also infer that the stalling resulted from either negligent maintenance or negligent operation of the vehicle. Further, we think Groves' attempt to show Woodington guilty of ...