Jehu P. Evans et al. v. the Pennsylvania Railroad Company, Appellant.margaret Elizabeth Jester, Widow, v. the Pennsylvania Railroad Company, Appellant.noah Kenneth Collins v. the Pennsylvania Railroad Company, Appellant.leland Kenneth Phillips, v. the Pennsylvania Railroad Company, Appellant, 255 F.2d 205 (3d Cir. 1958)

"At ordinary grade crossings, the sounding of the whistle, or perhaps, the ringing of the bell, may be a sufficient warning. At peculiarly dangerous crossings, some more efficient means of warning, or even an obstruction to passage, might be necessary."

In short, the Delaware law is that all railroad crossings are dangerous, requiring reasonable warning to the motorist of their existence, and the more dangerous the crossing, the greater the degree of warning is demanded.

Now, here, we are dealing with an unconcealed crossing, that is, a crossing the approach to which for some distance is a straight, level road. Thus, the several warning signs²  together with the ringing of bells and the train whistle might well be regarded as sufficient warnings under the circumstances but for one important fact — the approach of the train from plaintiffs' right was virtually concealed. Whether or not this circumstance required additional warning is, under the Delaware decisions, traditionally a question for the jury. In support of this conclusion, we find the following language from Gray v. Pennsylvania R. Co., 3 W.W.Harr. 450, 33 Del. 450, 139 A. 66, 75, particularly apt:

If there existed at the crossing in question, at the time of the accident, unusual dangers to persons approaching on the highway, it was the duty of the company to maintain at the crossing such means and agencies for the avoidance or prevention of injury as were reasonably required by the unusual situation. A railroad crossing, as we have said, is regarded as a place of danger, and particularly so if it is in a city or populous town, where existing conditions may make the crossing unusually dangerous. It is for the jury to say whether the crossing in question was such a crossing. The Court cannot say, as a matter of law, what particular means or agencies the company should employ in such case to notify persons approaching the crossing of the danger there existing, but we say it is the duty of the company to employ such means or agencies as are reasonably necessary to give timely and sufficient notice. What are the particular means or agencies that should be employed, and whether they have been employed, are questions for the jury to determine from all the evidence." (Emphasis added.)

Accordingly, the finding of negligence by the trial judge on this issue will not be disturbed.³ 

But, by way of further defense, defendant insists that it is not liable because here the train had pre-empted the crossing to a point where the plaintiffs' driver, in the exercise of reasonable care and caution, should have seen it and averted collision. This requires some consideration of another line of Delaware cases also dealing with railroad crossings. In Philadelphia and Reading Ry. Co. v. Dillon, 1921, 1 W.W.Harr. 247, 31 Del. 247, 114 A. 62, 65, 15 A.L.R. 894, an unlighted freight car was left standing across a railroad crossing at night and plaintiff crashed into it with his automobile. The Court held that the defendant was not liable, saying in part:

"The train was lawfully across the highway. The absence of lights on the train * * * is the negligence charged. It is not in itself negligence for a railroad company to allow a train of cars to remain a reasonable or lawful length of time across a highway. * * * The absence of such lights or warning signals does not of itself prove that the company was negligent as to the plaintiffs. * * * There was no statute or ordinance which required such lights or warning, or regulating the speed of or lights on the automobile."

And in Jones v. Pennsylvania R. Co., 5 Terry 486, 44 Del. 486, 61 A.2d 691, the Delaware Superior Court applied the principle of the Dillon case in denying relief to a plaintiff who drove his car into the side of an unlighted moving freight train at night during a snow storm. There the approach to the crossing was straight and unobstructed and the freight cars had been passing over the crossing for some time before the collision.⁴ 

The trial judge in the case at bar refused to apply the principle of the Dillon and Jones cases, stating:

"Defendant is not absolved from liability flowing from its violation of the duty owed to plaintiffs by reason of the general rule that a person who drives into the side of a train standing or moving over a grade crossing, cannot recover from the Railroad for injuries received. This general rule has no application to the present facts. Where applied by the Delaware courts, there were not extraordinary or unusual circumstances rendering the crossing peculiarly hazardous. Further, where as here, a matter of a few seconds determined whether the car hit the train or the train the car, application of the general rule would result in reward to the winner of the race to the intersection. The result becomes even more intolerable when it is realized the rationale of the general rule sought to be applied by defendant is that ordinarily, the presence of the train upon the crossing is adequate notice to travelers that the crossing is pre-empted. In this case the train was not on the crossing so as to provide notice to highway travelers. Rather, it was in the act of completely obstructing the crossing when noticed by Daniels."

We agree. As the trial judge correctly observed, this is not the Dillon case nor is it the Jones case. Here the approach of the train was concealed and the car and train collided while the latter was in the act of entering the crossing. In the two cases just cited, the approach of the train was not concealed; it had been standing for some time (as in Dillon) or proceeding across the crossing for some time (as in Jones). In our view, the facts of the cases just discussed are clearly distinguishable from this case.

Thirdly, defendant takes exception to the admission into evidence in this case of the fact of previous accidents at the same crossing. The trial judge expressly stated that his ground for the admission of this evidence was not that it tended to show negligence on the part of the Railroad, but, rather, that it constituted notice to the defendant of the dangerous character of the crossing. While the whole field bearing on the admissibility of evidence of prior accidents is a muddy one, and the admission of such evidence for the purpose of showing negligence is of the most doubtful competency, Baltimore & O. R. Co. v. Moore, 3 Cir., 13 F.2d 364, nevertheless, this Court did, in De Eugenio v. Allis-Chalmers Mfg. Co., 3 Cir., 210 F.2d 409, 414, consider evidence of this kind as competent to show notice to the defendant of the "dangerous character of the machine." Accordingly, we find no error in the action of the trial judge in this respect. Nor do we feel that the Court below erred in admitting evidence of these prior accidents at the same intersection under circumstances not exactly similar⁵  to those in the instant case. All these accidents happened at this particular crossing, took place at night and occurred between one of defendant's trains and an automobile. Under such circumstances as these, and where the offer of evidence is to prove, not negligence, but notice of the dangerous character of the crossing, the strictness of the requirement of similarity of conditions has frequently been relaxed. As stated by McCormick, Evidence (Horn Book Series), page 352:

"Since all that is required here (where the offer is for the purpose of showing notice) is that the previous injury should be such as to attract the defendant's attention to the dangerous situation which resulted in the litigated accident, the strictness of the requirement of similarity of conditions imposed when the purpose is to show causation of danger is here much relaxed."

Compare McCormick v. Great Western Power Co., 214 Cal. 658, 8 P.2d 145, 81 A.L.R. 678; City of Taylorville v. Stafford, 196 Ill. 288, 63 N.E. 624.

Defendant's final exception is to the allowance by the trial judge of $11,594.00 to certain of the plaintiffs in the amounts hereinafter set out:

 To Evans, for the reasonable value of nursing service rendered him by his parents but for which no bill was rendered because performed gratuitously $5,940.00 To Evans, an amount of money representing a reduction by his doctors in the size of their bill rendered him due to his impecunious circumstances 750.00 To Mrs. Jester, a figure representing her estimate of the amount which she, as widow, would have to advance to rear her child 4,904.00

To the extent of the allowances just stated, we decide that the defendant's exceptions are well taken. It is our function in this litigation to ascertain and apply the law of Delaware. As we understand the law, a plaintiff in this sort of case can recover damages for services rendered only to the extent that he has paid for them or incurred an actual liability therefor. Girardo v. Wilmington Philadelphia Traction Co., 5 Boyce 25, 28 Del. 25, 90 A. 476; Kane v. Reed, 9 Terry 266, 48 Del. 266, 101 A.2d 800. Here the services to the plaintiff Evans rendered by his mother and father were gratuitous. Regrettably, they cannot be recovered. The same principle applies to the sum of $750.00 by which his physicians gratuitously reduced their bill.

A different principle applies to the allowance made for the rearing of the Jester child. In Turcol v. Jenkins, 1956, 10 Terry 596, 49 Del. 596, 122 A.2d 224, the Court took occasion to review most of the Delaware decisions bearing on this subject. Despite the rather broad language of the statute, it concluded that the true measure of damages in a widow's action was such sum of money which, when invested, would represent the amount she would have received from her husband if he had lived his life expectancy. There is a fairly clear inference to be found in Wood v. Philadelphia, B. & W. R. Co., 1 Boyce 336, 24 Del. 336, 76 A. 613, that such a recovery must not include any allowance for a child and the very recent Delaware decision of Williams v. Chittick, Del.Sup. 1958, 139 A.2d 375, appears to be direct authority for the proposition.⁶  Accordingly, the award must be set aside.

The case will be remanded to the Court below with instructions that the judgment be reduced by the sum of $11,594.00. In all other respects, the judgment will be affirmed.