120 Md. 65 | Md. | 1913
delivered the opinion of the Court.
This is an appeal from a judgment in favor of the defendant (appellee) on a verdict returned by a jury in accordance with two prayers granted by the Court at the conclusion of the testimony offered by the equitable plaintiffs, instructing the jury to render a verdict for the defendant. Isaac Silver, the husband of Sarah Silver, and the father of the other equitable plaintiffs, was killed on October 30th, '1910, at a grade crossing of a county road over the tracks of the railroad company. Mr. Silver was a successful merchant at
. There was a whistling post for the southbound track 823 feet north of the crossing, and there was evidence that the whistle was not blown and that no danger signals were given. Hone of the witnesses saw the accident, unless it was the engineman, and he was only examined as to the size and equipment of his train, the speed and the grade. At the argument it was conceded by counsel for the railroad company that there was some evidence of negligence on its part,
It can not be doubted that there was evidence of contributory negligence by him in going upon the track when a train was thus approaching. As has often been said by this and other Courts, railroad tracks are themselves some warning of danger, and the photographs in evidence show that there-were signs on each side of the crossing reading, “Railroad Crossing. Stop, Look and Listen.” Mr. Silver lived within half a mile of the crossing, and he was engaged in business at O dentón, a small village through which the trains of the defendant run. He must'therefore have been familiar with trains running on that road between .Baltimore and Washington. A train running at fifty miles an hour would necessarily make much noise, which at a quiet country crossing could be heard at a very considerable distance, if there was no other train or other noise in the neighborhood, and there is no evidence that there was either. It is true there was a small cut or embankment six or seven feet high a little distance north of the crossing, but the acting coroner testified that the weeds and grass had been cut off in the latter part of September or early in October, and the evidence showed that while the tracks in the cut could not be seen from the crossing a train could be. One witness who made experiments said that from a point about twenty-six feet west of the crossing he could see a train about fourteen hundred feet towards Odenton and several witnesses said that when on the crossing the tracks could be seen for at least eight hundred feet. There is nothing to show that Mr. Silver was not in full possession of his senses of sight and hearing,
This brings us to the point relied on by the appellants. The difficulty that at once meets us in considering that branch of the case is that there is no evidence in the record which could have enlightened the jury on the subject. If, as we have indicated, the deceased was guilty of contributory negligence in attempting to cross the tracks under such circumstances, the burden was shifted and the plaintiffs were required to show that the defendant’s agents were guilty of negligence in not avoiding the accident, notwithstanding the negligence of the deceased. They were forced to rely on a matter of a few seconds, as to whether the engineman running at a speed of forty-five of fifty miles an hour could have sufficiently checked the train so as to avoid the accident from the time he could have seen the deceased on the track or could have known that he was about to go on the crossing, notwithstanding the approach of the train. It can not be claimed that the evidence shows that the engineman did see him in such perilous position in time to have avoided the accident, if he had then used due and reasonable efforts to prevent it, for as we have seen, the record is utterly devoid of any evidence on that subject. The plaintiffs naturally and perhaps wisely refrained from examining the engineman as to that, as they would then have been using the testimony of the man whom they were seeking to show was responsible for the unfortunate death of the deceased. Their failure to examine him on the subject should therefore raise no presumption
It is evident, therefore, that a jury could not have found that the engineman did not do all that was required of him after he discovered the deceased in the perilous position from any direct evidence on the subject, and a verdict finding that he did not would necessarily have been founded on speculation. An engineman has many duties to perform in running rapidly through the country, in addition to looking out for crossings, — especially a crossing such as this. The safety of the passengers in his charge may have demanded the attention of the engineman to some part of his engine for the few seconds which the plaintiffs claim were of such moment; the brakes may not have worked as promptly as they should, or for some good reason he may have been unable to cheek the train in time after he discovered the deceased. As shown by one of the photographs, there is a curve a short distance north of the crossing (at the embankment spoken of above) and if the engineman was looking in front of his engine he apparently could not have seen that the horse was on the track until he got closer to the crossing than the embankment. If when some distance north of that point he could have seen or did see Mr. Silver approaching the crossing, under the authorities he had the right to assume he would not go on the tracks in a place of danger.
The appellant called J. Erank Snyder, a locomotive engineer of the Western Maryland Railroad Company, as an expert. He said that such a train as that was, under the conditions explained to him, going at forty-five miles an hour, “could be stopped by the use of the Westinghouse E. T. equipment high speed brake in about 450 to 500 feet; that if the train was going at about fifty miles per hour, it could be stopped within from .825 to 850 feet; I couldn’t say exactly because I have never seen it tested.” The engine in question was equipped with that brake. But a witness (William M. Clarke) who said he saw the train forty-five' or fifty
Owing to an entire absence of testimony on the subject, it would have been impossible for the jury to have determined when Mr. Silver drove upon the tracks, or at what speed he was going. It may be easy to calculate how long it will take a horse and buggy to cross over a railroad track, if the speed at which the horse was moving is known, but whether Mr. Silver’s horse was then going in an ordinary walk, or a trot, or was being hurriedly driven over the crossing at an unusual speed it is impossible to say. It is not an unusual sight to those accustomed to being near railroad crossings to see vehicles rapidly driven over them just in front of approaching trains, and the law books furnish many instances when such attempts have been disastrous. This buggy was struck on the first track, and -while it may be that if Mr. Silver had had two or three more seconds he would have crossed in safety, no one can say from the record whether it would have
The appellants after explaining to Mr. Snyder the conditions, and estimating the speed of the train at fifty miles an hour, inquired of him, “within what distance could that train be so slowed down as to reach a given point three seconds later than it would had it continued its speed of 50 miles per hour?” He replied, “About 300 feet; that if the train was running at the rate of 45 miles per hour his answer would be 270 and 300 feet.” The record does not show whether his answer was based on a mathematical calculation, experiments or what, bnt if it be assumed to be correct, it is manifest that it could throw no light on the subject in the absence of proof as to when Mr. Silver started to cross, how fast he was going and when the engineman discovered him on the track. The theory of the appellants was that it would take a horse and buggy so many seconds to go the distance necessary to clear the track, and that if the engineman had checked his train Mr. Silver could have escaped. Bnt, as indicated above, that must depend upon conditions which were not proven — such as where the engine was when the horse first got upon the track, how fast it was actually going, etc.
In Consol. Ry. Co. v. Armstrong, 92 Md. 554, it was contended that this Court had gone further in McKewens and Appel’s Cases, 80 Md. 593 and 603, and Rifcowitz’s Case, 89 Md. 338, in the modification of the rule as to contributory negligence than it had in its former decisions— those cases adding to prayers on contributory negligence such a qualification as “If the defendant’s motorman could have avoided the accident by the exercise of due care after he saw or ought to have seen the plaintiff’s peril,” or something to that effect. After answering that suggestion the Court, through Judge- Schmucker, said: “The modification of the general doctrine of contributory negligence should not be constantly or indiscriminately used in instructing juries in suits for injuries caused by negligence, but its employment should be confined to those cases in which there is testimony placing the defendant or his agent in a situation affording him an opportunity to discover the plaintiff’s peril, by the exercise of reasonable care, in time to avert it,” and attention was called to the fact that the cases of McKewen, Appel and Rifcowitz were cases of injury by electric street cars to persons crossing their tracks at intersecting streets, in which the cars were running at a high rate of speed and it was shown that if the motorman had slackened the speed
In Kolken’s Case, 114 Md. 160, which was a suit for injuries for an accident occurring at the crossing of two streets in Baltimore, the rule stated in Ward’s Case was approved, but after referring to McNab’s Case, supra, and quoting what Judge McSheeey had taken from Neubeur’s Case, 62 Md. 401 — that “It was not the duty of those in charge of the train to anticipate the conduct of the plaintiff, and because they saw him approach the crossing to conclude that he would attempt to cross in advance of the train”— Judge Thomas also, who delivered the opinion in Ward’s Case, said: “But, as was distinctly recognized in that case, a very different rule applies to the running of cars on the crowded thoroughfares of a city, where the motorman is required, to anticipate the conduct of those crossing the
The case of B. & O. R. R. Co. v. Welch, 114 Md. 536 (which was again before this Court in 117 Md. 280), was also relied on by the appellants — particularly the part of the opinion on pages 546 and 547 of 114 Md. That unfortunate lad was killed, however, in Baltimore City, and he was not on a public crossing but was a trespasser. The well established rule as to trespassers was applied in that case, and without meaning to say or intimate that the agents of a railroad company do not owe a greater duty to persons using a public crossing in the country than they owe to trespassers, it can not be said that under-our decisions, some of which are cited above, the rule can be as strictly applied to crossings on railroads in the open country as to railways in cities,
We will not discuss the exceptions to the testimony, but will only add that there was no error in any of those rulings.
Judgment affirmed, with costs to the appellee.