56 A. 966 | Md. | 1904
At the close of the appellant's case, the Court granted an instruction taking the case from the jury, and directing a verdict for the defendant. The position of the appellee is thus stated in its brief. "There is no question raised by this case as to whether or not the stop, look and listen rule should apply, or to what extent an open gate, is an implied assurance that the track may be safely crossed; or any other of the points passed on in the Stumpf case; but the sole question is, whether or not the plaintiff is barred by his own contributory *403
negligence." "Admitting, as we must," the counsel of the appellee in his brief proceeds to state, "the negligence of the railroad company in not having the gates closed at the time of the accident, and its negligence in every other particular, as made out by the plaintiff's case, yet, the plaintiff's own negligence would defeat the right to recover and warrant the lower Court in taking the case from the jury." There is no doubt that this position is correct, if the evidence makes out such a clear case of contributory negligence as that no reasonable person can differ about it, the case should have been taken from the jury.Pennsylvania R.R. Co. v. McGirr,
But if the evidence of negligence on the part of the appellant is contradictory, or is of such a character that reasonable persons may differ as to its amounting to proof of the negligence of the appellant and that such negligence contributed to the accident, then a case would be made out for the jury; and it would be error to withdraw it from their consideration. LakeRoland Co. v. McKewen,
Turning now to the evidence, the record shows that the plaintiff, a laborer, "after sundown," left his home and came to the corner of Henrietta street and Ohio avenue, and attempted to cross over the railroad tracks at that point. This is a grade crossing and a public thoroughfare. The company *404
has maintained there for some years safety gates, pursuant to an Act of Assembly (City Charter, sec. 791). These were open. There are six pairs of tracks on Ohio avenue. If no cars are on the track, one crossing on Henrietta street, would have an unobstructed view for four squares — and at night, a moving lantern could be seen for that distance. There is a watch-box between the tracks, but on the night of the accident no watchman was there. There are two electric lights at the crossing, one on each side of the tracks. Twenty or more feet and along the tracks from the crossing, there is an elevator building, the shadow of which by reason of the location of the electric light, is cast over the tracks. There was conflicting testimony as how clearly objects within the shadow could be seen. The plaintiff testified "it was awful dark at this house, I could not see anything;" Griffiss — the "elevator shades the tracks about 30 or 35 feet below the crossing, but a train of cars could be seen by "noticing particularly." Porter — "standing in the middle of the track, you could see" within the line of illumination; outside of that, "I could not say that one could." The account of the accident given by the plaintiff, is as follows: After reaching the crossing; "I went to go across;" "I stop always — the gates were open," "I went on and then I looked up, there is a big elevator house there;" "there is a big shed on that track and I knowed usually they always kept cars there, sometimes on both sides and I looked up and I imagined I saw some cars; it was very dark, but I thought I could see the shape of the cars in the dark, somewhere there about the house, and so then I started on across the track; when I got about middle way of the track as near as I can say, I heard a bell towards the station way, as I thought it sounded like a bell; I suppose it was a bell; and I kept walking and casting my eye that way, and just as I did that a train run up and struck me, c." It appears, from other evidence, that it was a freight train running backwards, with the engine at the far end from the appellant. There is no evidence that there were any signals or warnings given of its approach, so that it must be assumed for our purpose *405
that no bells or other signals were given and no lights shown on the front or any part of the train. In view of all this evidence, it would seem to be an open question whether the plaintiff acted with insufficient caution. The case of Dyrenforth v. B. O.R.R. Co.,
In the case at bar, however, there was the darkness down the track, and no signals or warnings, or lights, the sense of security afforded him by the open gates, and the further fact that the engine was at the further end of the approaching train, (without lights so far as we are informed) these were all facts to be regarded in determining the question whether under *406 all the other circumstances of the case, he by the exercise of ordinary care ought to have seen his danger and thereby avoided the accident. He was entitled to have them all submitted to the jury for their finding and it was therefore error to grant the prayer taking it from them.
Judgment reversed with costs to the appellant and new trialawarded.
(Decided January 13th, 1904.)