Marsha E. Saponari, wife of appellant, George P. Saponari, was killed on August 9, 1994 when she was struck by a CSXT freight train while attempting to cross the railroad tracks at a commuter station in Laurel, Maryland. Appellant, individually and as personal representative of the estate of his deceased wife, brought suit on April 16, 1996 against appellee, CSX Transportation, Inc. (CSXT), in the Circuit Court for Prince George’s County. Appellant claimed negligence by appellee, alleging wrongful death individually and pursuing a survivor’s claim on behalf of the estate. Appellee denied negligence and raised the affirmative defenses of contributory negligence and assumption of the risk. Following discovery, appellеe made a motion for summary judgment which was denied by the court (Sothoron, J.) on October 16,1997.
A jury trial began on March 16, 1998, and appellee made motions for judgment on the issues of contributory negligence and assumption of the risk at the close of appellant’s evidence and at the conclusion of all the evidence. Both of the motions were denied. The court instructed the jury on the issues of negligence, contributory negligence, and, despite objection by appellant’s counsel, assumption of the risk. On March 19, 1998, the jury returned its verdict and answered special
I. Did the trial court err by submitting the issue of assumption of the risk to the jury?
Appellee filed a cross-appeal on April 15, 1998 and presents the following question that we restate and restructure as follows:
II. Did the trial court err by denying appellee’s motion for summary judgment and subsequent motions for judgment because the decedent was contributorily negligent and assumed the risk of her death as a matter of law?
We answer appellant’s question in the negative and appellee’s question in the affirmative. Therefore, we vacate the court’s judgment and remand the case for entry of a judgment in favor of appellee.
FACTS
On the morning of August 9, 1994, at approximately 8:30 a.m., appellant drove his wife to a commuter train station located in Laurel, Maryland, so that she could take a Maryland Rail Commuter (MARC) train to her job in Washington, D.C. Before addressing the accident at issue, it is helpful to describe the setting of the Laurel Train Station. The station building and a commuter parking lot are adjacent to the southbound tracks while a passenger shelter for inclement weather is on the northbound side of the tracks. Because of a steep hill behind the shelter, the road accessing the northbound side is well below the level of the tracks. The road accessing the southbound side, however, leads into the commuter parking lot and is level with the railroad tracks.
If a person chooses to use the stairs adjacent to the shelter on the northbound side, at the top of the staircase there is a six-foot platform before a two-foot yellow warning zone that abuts the northbound track. An individual must look to the left upon reaching the platform to ascertain whether’a train is coming from the southbound direction. The shelter, however, obstructs a person’s view of the northbound track for the first three feet of the platform. Within the next three feet before the yellow warning zone, a person is able to see 640 feet up the northbound track.
Appellant’s wife regularly commuted to her job from this station, usually driving herself and parking in the commuter lot. On the day in question, however, appellant dropped off his wife and she exited the car on the northbound side below the tracks. Because she needed to go to the southbound tracks for her commute to Washington, D.C., the decedent had to cross the tracks. Instead of walking through the tunnel to reach the southbound side, the decedent chose to proceed up the stairs adjacent to the shelter and cross the railroad tracks via the wooden walkway. After arriving at the top of the stairs, the decedent’s next few steps are a matter of dispute between the parties. Tragically, however, the undisputed result was that, when the decedent stepped onto the walkway and began crossing the northbound tracks, appellee’s freight train struck and killed her. We shall set forth the facts that may be ascertained from testimony at trial and the parties’ briefs regarding the decedent’s path prior to her untimely death.
Immediately before appellant’s wife bеgan to ascend the stairs that morning, John Gianetti, a local politician, handed her a campaign brochure. At the top of the steps, testimony
Appellant subsequently brought suit, individually, for wrongful death and on behalf of the estate based on a surviv- or’s suit, on April 16, 1996 in the Circuit Court for Prince George’s County.
DISCUSSION
I
Appellant first contends that the trial court erred by submitting the assumption of the risk issue to the jury. Assumption of the risk is “an intentional and voluntary exposure to a knоwn danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk.” Baltimore Gas and Elec. Co. v. Flippo,
In the determination of these elements, “an objective standard must be applied and a plaintiff will not be heard to say thаt he did not comprehend a risk which must have been obvious to him.” ADM Partnership,
Appellant further relies on Flippo, supra, in which a ten-year-old child was injured while climbing a tree when hе came in contact with a utility company’s electric wire. In Flippo, the jury returned a verdict against the utility company, and the Court of Appeals held that the company was not prejudiced by the trial court’s refusal to submit the issue of assumption of the risk to the jury. See Flippo,
In order to succeed on a defense based on its theory of assumption of risk, [defendant] would bear a somewhat*34 heavier burden of proof: that [the plaintiff] actually knew of the potential danger of overhead electric wires and actually knew of the presence of this particular wire when he voluntarily subjected himself to a risk of contact with the wire by climbing the tree.
Id. (quoting Baltimore Gas and Elec. Co. v. Flippo,
As noted, an objective, rather than subjective, standard is used to determine whether a person had knowledge of the risk. See ADM Partnership,
Appellant’s reliance on Rogers also is misplaced because the accident in Rogers would have occurred regardless of whether the plaintiff was wearing a helmet. Consequently, the plaintiff did not relieve the defendant of the obligation to act carefully. Our conclusion finds support in the fоllowing holding of the Court of Appeals regarding the right of recovery in similar situations:
*35 These [allegations] substitute, as the test of recovery, actual knowledge that no train or engine was approaching, for the due care and caution required by the law in endeavoring to ascertain this fact. The right of recovery does not depend upon the accuracy of the plaintiffs information as to the approach of the train, but upon the measure of care and caution exercised to obtain accurate information, under all the circumstances of the case.
Baltimore & Ohio R.R. Co. v. Stumpf,
Appellant contends that appellee failed to demonstrate that the decedent, by intentionally crossing the tracks despite her knowledge of the danger, voluntarily consented to the risk. Regarding voluntary consent, the Court of Appeals has held that,
in order for a plaintiff to assume voluntarily a risk of danger, there must exist “the willingness of the plaintiff to take an informed chance,” Schroyer,323 Md. at 283 ,592 A.2d at 1123 ; there can be no restriction on the plaintiffs freedom of choice either by the existing circumstances or by coercion emanating from the defendant.
ADM Partnership,
In the case sub judice, however, the decedent was not confronted with coercion or a restriction of choice. The decedent could have avoided the danger by taking the under
II
Appellee contends on cross-appeal that the trial court erred by denying its motion for summary judgment and subsequent motions for judgment because the decedent was contributorily negligent and assumed the risk of her death as a matter of law.
A
Appellee first argues that the decedent was contributorily negligent as a matter of law by allegedly failing to stop, look, and listen before crossing the railroad tracks. Contributory negligence “is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.” Flippo,
Appellee relies upon Glick v. Cumberland & Westenport Elec. Ry. Co.,
This rule, however, may be mitigated when customary warnings are given by a railroad. See Patapsco & Back Rivers R.R. Co. v. Bowers,
We shall look to additional cases discussed in Patapsco for guidance as to whether the failure to sound a warning horn also could mitigate the stop, look, and listen requirement so that a jury question would be created. One line of analogous cases holds that the issue of contributory negligence is a question for the court while the other line concludes that the issue is for the jury. First, we shall review those cases allowing the issue to go to the jury.
In Baltimore and Ohio R.R. Co. v. Stumpf, although the plaintiff looked four times both ways before crossing a set of railroad tracks that had safety gates raised, indicating that it was safe to cross, he was struck by the defendant’s train. The Court of Appeals addressed, as a matter of first impression, whether safety gates that were required to lower upon the approach of a train, but had not, could mitigаte the rule requiring a person to stop, look, and listen before crossing the tracks. See Stumpf,
the authorities are numerous ... that open gates, or the absence of the usual signals of an approaching train or engine are implied assurances that no train or engine is approaching the crossing with intent to cross the street, upon which travelers on the street have a right to rely, and that if a traveler on the street be injured while crossing the railroad in such circumstances, the question whether he was guilty of contributory negligence is for the jury.
Id. at 95,
Parallel with this reasoning, the Court, in Pachmayr v. Baltimore & Ohio R.R. Co., determined that the contributory negligence issue was proper for the jury. There, the decedent was killed while crossing railroad tracks in his truck when a train that passed him going in the opposite direction rolled backward, striking the plaintiffs truck. Additionally, the decedent was an employee of the railroad familiar with the usual custom, which was not followed in this case, of having a flagman at the crossing if the train’s backward roll would cause danger to anyone trying to cross. It did not appear that the decedent “drove on the trаck without looking for dangers which might be imminent, and that he thus acted in heedless and complete reliance upon the assumption that the practice of posting flagmen for passing trains or locomotives would in no instance fail to be pursued.” Pachmayr,
The second line of cases concludes that the issue of contributory negligence is for the court, not the jury, to decide. In Baltimore & Ohio R.R. Co. v. Bruchy,
If he went on the crossing from а place of absolute safety without taking the precaution at least to turn his head in both directions, to look and listen for a train that might be approaching, he was guilty of contributory negligence, irrespective of whether or not he relied upon a crossing bell. There is a difference, at least in the degree of negligence, between proceeding across the tracks of a railroad without continuing to look, after having stopped and carefully looked and listened before going on the right of way, and going upon the right of way from a place of absolute safety without taking the trouble to look and listen at a point where an approaching train could be clearly seen.
Id. at 180,
In Baltimore & Ohio R.R. Co. v. Andrews,
This is no less true of testimony that some one [sic] else looked and did not see. Thus the net difference between the testimony of plaintiffs witnesses and defendant’s two witnesses is only the difference between attempting to cross, after stopping, without looking and attempting to cross without stopping or looking. Either version of the facts shows that the unfortunate man used no care at all at this familiar — dangerous—crossing and leaves no jury question as to what care an ordinarily prudent man would use under the circumstances.
Andrews,
The instant case is analogous to those discussed above in which judgment as a matter of law was proper. Before examining the decedent’s actions, we note that the failed warning horn must be given a measure of consideration during such examination. The deсedent did not pass through a gate that was improperly raised or cross where a flagman usually was located. These types of safety measures provide a heightened assurance of safety and allow an individual to rely on the railroad’s duty to protect him or her from harm. A warning horn, as in the case sub judice, does not provide the same assurance because it is not a stationary fixture at the crossing itself and an individual’s reliance on the horn is less reliable and predictable.
Although the freight train that struck the decedent did not stop at the station as a commuter train would have done, the decedent, a regular commuter, may have become accustomed to hearing a horn signaling an approaching train. Appellant’s reply brief calls it “extremely unlikely” that the decedent was not familiar with the freight trains and their customary warnings. While this inference tends to prove the decedent may have relied on the warning horn, it also demonstrates that she was aware that trains would pass through the station without
Even in the instance of a failed warning, Bruchy and Andrews demonstrate that a person is not relieved of his or her duty to stop, look, and listen “in the face of obvious danger.” The decedent in this case stepped in front of a train that was approximately sixty feet away from her. Therefore, examining the decedent’s actions and whether she stopped, looked, and listened for an approaching train is dispositive.
It is apparent that the decedent should have been able to see the train if she looked once the shelter was no longer obstructing her vision because the train was only approximate
The decedent’s need to stop before crossing is reinforced by the obstruction caused by the shelter. As observed supra, when “the view of the tracks is obstructed at or near the place of crоssing, it is the duty of the traveler to stop, look, and listen before he attempts to cross.... ” Hurst,
Consequently, the trial court erred in its denial of appellee’s motion for judgment because there was not sufficient evidence that the decedent stopped and looked to ascertain whether a train was approaching. Furthermore, the failure of appellee to provide its required warning did not provide the decedent with enough of an assurance of safety to mitigate her duty to stop, look, and listen.
Appellee also contends on cross-appeal that the trial court erred because the decedent assumed the risk of her death as a matter of law. As discussed, supra, assumption of the risk requires that the plaintiff not only have knowledge and appreciation of the risk but also voluntarily confront the risk. See ADM Partnership,
It is undisputed that an adult of normal intelligence, much less a regular commuter, has knowledge of the risk of being hit by a train when crossing active railroad tracks. As the Court of Appeals stated, “when it is clear that a person of normal intelligence in the position of the [person injured] must have understood the danger, the issue is for the court.” Schroyer,
Here, the decedent had the option of crossing the tracks or using a tunnel beneath the tracks to avoid the danger. By crossing the tracks at a station where she was familiar with the dangers, the decedent voluntarily assumed the risk of being struck by a train. Even when viewed in a light most favorable to appellant, it is certain that the decedent assumed the risk of injury as a matter of law because she had knowledge and appreciation of the risk of being struck by a train and voluntarily chose to confront it when she crossed the tracks rather than use the underpass. Therefore, the trial court erred by not granting аppellee’s motion for judgment at the close of all the evidence.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY VACATED; CASE REMANDED
COSTS TO BE PAID BY APPELLANT.
Notes
. Appellant also claimed negligence based on the freight tram’s alleged excessive speed. On this claim, not relevant to the appeal before us, the lower court granted summary judgment to appellee in its October 16, 1997 order.
. The docket entry for April 10, 1998 reflects that April 8, 1998 was the date upon which the court entered judgment.
. The speed limit at this portion of the track was fifty-five miles per hour.
. In Warner, the Court of Appeals distinguished the overlapping defenses of assumption of the risk and contributory negligence as follows:
Contributory negligence, of course, means negligence which contributes to cause a рarticular accident which occurs, while assumption of risk of accident means voluntary incurring that of an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting. Contributory negligence defeats recovery because it is a proximate cause of the accident which happens, but assumption of the risk defeats recovery because it is a previous abandonment of the right to complain if an accident occurs.
Warner,
. We note appellee’s contention, based on appellant’s failure to move for judgment at the close of all the evidence, that appellant failed to preserve his challenge to the court's submission of the assumption of
. Appellant’s only argument that the decedent failed to appreciate the risk was that, because the decedent did not have knowledge of the risk, it was impossible for her to appreciate the risk. Having concluded that the decedent had knowledge of the risk of being struck by a train in part because she was judged as an adult of normal intelligence, it is clear that she appreciated the risk and we decline discussiоn of the issue.
. We note that the trial court never ruled on appellee’s motion for judgment at the close of all the evidence. Instead, the court reserved its ruling and, after the jury returned a verdict in favor of appellee, the court stated that its "reservation ... for the motion of judgment on the issue of contributory negligence and assumption of the risk is now moot in light of the jury’s verdict." The trial court's failure to make a ruling does not affect our analysis of whether, at the close of the evidence, the court should have granted appellee's motion because the decedent was contributorily negligent or assumed the risk as a matter of law.
. Regarding whether the decedent listened for an аpproaching train, Richard Barney, who was distributing political campaign brochures, testified that he "heard no noise that would indicate a train was coming.” Thomas Mawhood, who was standing at the bottom of the steps on the northbound side of the tracks, did not hear anything until "[a] loud noise which I believe was the train itself. And it was right at the top of the stairs.” Additionally, other witnesses testified that they never heard a horn sound prior to the train moving past the station as it struck the decedent. Evidence was presented demonstrating that, when viewed in a light most favorable to appellant, the decedent may not have heard the tram’s approach before attempting to cross the tracks. This conclusion, however, does not allow appellant to overcome the decedent’s failure to stop and look.