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HomeMy WebLinkAbout95 -298 civilJOSH D. KRAMLICH, Plaintiff VS. UNITED VAN LINES AND JAMES CARDWELL, Defendants VS. KING RELOCATION SERVICES a/k/a KING VAN · & STORAGE, INC., · Additional defendants · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-298 CIVIL CIVIL ACTION- LAW IN RE' MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLER, JJ. AND NO W, this ORDER day of June, 1999, the motion of the defendants for summary judgment is DENIED. BY THE COURT, David A. Baric, Esquire For the Plaintiff K? Hess, J. Guy H. Brooks, Esquire Evan J. Kline, III, Esquire For the Defendants 'rlm JOSH D. KRAMLICH, Plaintiff VS. UNITED VAN LINES AND JAMES CARDWELL, Defendants VS. KING RELOCATION SERVICES a/k/a KING VAN · & STORAGE, INC., · Additional defendants · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-298 CIVIL CIVIL ACTION- LAW IN RE' MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLER, JJ. OPINION AND ORDER This matter is before us on the defendant's motion for summary judgment. The incidents giving rise to this lawsuit occurred on February 22, 1993, at approximately 3'00 p.m. as the plaintiff, Josh D. Kramlich was traveling on North Chestnut Street in the borough of Mt. Holly Springs in Cumberland County. A set of railroad tracks intersects North Chestnut Street. The plaintiff was familiar with this crossing. On the date and time in question, the plaintiff was struck by a train approaching from the left as he entered the crossing. The train was traveling at thirty-five miles per hour, below the federally authorized track speed of forty miles per hour. According to his affidavit, the train engineer sounded the train whistle multiple times as he approached the intersection, rang the train bell, and had lit the train's headlight. A witness, Tyrone Gitt, testified that he had heard the train whistle sound for approximately ten to twenty seconds before the crash. Police Officers Duane Lebo and Rodney Smith both testified that when they responded to the accident, the red crossing lights on the two 95-298 CIVIL sets of railroad crossbucks, one set on the south of the tracks and the other on the right of the north side of the tracks, were flashing. Each crossbuck contains four red lights, two that face north and two that face south. Richard R. Santo, a Conrail employee in its communication and signal department testified at a deposition that the signals would have started flashing when the train was between 2,200 and 3,000 feet from the intersection. The plaintiff testified that as he approached the crossing he was focused on the defendant's moving van that was parked on the fight side of the road just before the intersection, and was forced to "straddle" the yellow lines. The plaintiff testified that he could not recall ever looking to his left as he approached the crossing on the day in question and did not stop at any point in traveling on Chestnut Street until the collision. The plaintiff further testified that he could not recall looking at the crossbuck and that the possibility of a train approaching was not foremost on his mind. According to Officer Smith, the back of the moving van was thirty-eight feet eight inches (38'8") from the center of the railroad tracks. However, the plaintiff has presented testimony that the moving van was much closer than that measured by Officer Smith. Witness Gitt testified that the truck was parked almost against the signal light and was moved after the accident. Chief Duane Lebo testified that there were tracks in the snow behind the truck indicating that at some time prior to the accident the truck had been further back than it was located when the police arrived at the scene. The defendants, United Van Lines, James Cardwell and King Relocation Services, have filed a motion for summary judgment. The sole issue argued is: Whether Mr. Kramlich's negligence, in ignoring the numerous warnings of the oncoming train and proceeding across a known railroad crossing without looking or stopping, is greater than fifty percent (50%) as a matter of law. 95-298 CIVIL Thus, we focus solely on the question of whether the plaintiff's contributory negligence warrants summary judgment in favor of the defendants. Pennsylvania Rule of Civil Procedure 1035.2 provides' After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment, in whole or in part, as a matter of law (1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after completion of discovery relevant to the motion' including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. However close this case may be, the issue of whether the plaintiff is barred from recovery by virtue of his own negligence cannot, on the state of the record, be resolved as a matter of law. Because the testimony concerning the location of the moving truck at the time of the accident is disputed, we shall not consider the possibility that the plaintiff could have viewed the flashing lights on the right side of the crossing. However, the defendants assert that we should find, beyond doubt, that the flashing lights on the other side of the crossing were visible to the plaintiff from where his car was located as he approached the crossing. From the record, we cannot state unequivocally that is the case here. The defendants rely to a large extent on the fact that another set of signal lights were flashing and facing the plaintiff' s direction. Again, the plaintiff has presented testimony that the lights on the northern side of the crossing, the lights not hidden by the truck, were set to a point 95-298 CIVIL of focus a mere fifty feet from the crossing. More importantly, as witness Sanno, a Conrail signal maintainer, stated the point of focus was set for a driver of a vehicle who was in his intended lane of travel. The undisputed facts here show that the plaintiff was forced to travel outside of the northbound lane and substantially into southbound lane so as to be "straddling" the double yellow lines. The position of the defendant's truck caused the plaintiff to move his vehicle into the other lane. We are left with the defendants' contention that because the train was clearly visible had the plaintiff looked to his left, and because the plaintiff did not stop, look and listen before entering the crossing, he is therefore contributorily negligent as a matter of law so as to bar his recovery. While it is tree that the case law does state that the driver of a motor vehicle must stop, look and listen before entering a railroad crossing, and the failure to do so constitutes negligence, it is equally true that the more recent appellate decisions" 'have moved away from the absolutist posture that characterized' the former application of the role." Buchecker v. Reading Co., 271 Pa. Super. 35, 44, 412 A.2d 147, 151-52 (1979). In a case very similar to the one at bar, Evans v. Reading Co.., 242 Pa. Super. 209, 214, 363 A.2d 1234, 1236 (1976), the court noted that the general role was limited by the more general dictates of the contributory negligence doctrine. The court went on to state that "[o]ne who fails to stop, look and listen will not be precluded from recovering if his failure was not contributorily negligent i.e., recovery will not be precluded where the failure was not negligent of where it was not a contributing cause of the injuries." Id__.:. In Evans, the decedent did not stop before driving his truck onto the railroad tracks even though a crossbuck and flashing signals preceded the crossing. The defendant presented testimony that the train's whistle and bells were sounded in advance of the crossing. The plaintiff was able to present witnesses who testified that 95-298 CIVIL visibility was greatly reduced due to the presence of foliage, a strong glare produced by the rising sun, that no whistle or bell had been sounded and no warning lights had been seen. The court stated that the lower court did not err in denying appellant's motion for judgment N.O.V. because the jury could have found that due to the sun or the foliage or both, the decedent did not see the crossing or did not see it until it was too late. Id. at 215,363 A.2d at 1237. Moreover, in Johnson v. Penn. Railroad Co., 39 Pa. 436, 160 A.2d 694 (1960), the court stated that, "a traveler may not be held to the same measure of care which he is bound to exercise when he has a clear and unobstructed view for a significant distance and time to be properly informed of the danger ahead." Id. at 441, 160 A.2d at 697. In this case, viewing the facts in a light most favorable to the plaintiff, we cannot say that the plaintiff was more than fifty percent negligent for the accident in not stopping and looking to the left once he approached the crossing. The plaintiff' s own undisputed testimony is that he was in the middle of the road when he approached the crossing because of the truck's location on the side of the road. A jury could find that the plaintiff acted reasonably in focusing his attention on avoiding the truck and watching out for oncoming traffic since he was in both lanes. For these reasons, we enter the following order. ORDER AND NOW, this day of June, 1999, the motion of the defendants for summary judgment is DENIED. BY THE COURT, Hess, J. 95-298 CIVIL David A. Baric, Esquire For the Plaintiff Guy H. Brooks, Esquire Evan J. Kline, III, Esquire For the Defendants :rlm