87 A. 492 | Md. | 1913
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 *67 Odenton, Md. He lived about half a mile from the crossing, which is a little less than half a mile south of Odenton — his home being on the westerly side of the railroad, and there being two tracks at the crossing, the one on which trains go from Washington towards Baltimore being known as the northbound track, and the other, on which trains go towards Washington, being spoken of as the southbound track. This unfortunate accident was caused by a collision of a train on the southbound track with a buggy in which Mr. Silver was riding. The train consisted of a combination car, two passenger coaches, a pullman car, and the engine and tender, and was running about fifty miles an hour. There is a slight up-grade from Odenton in going south for some distance — a surveyor who made a plat offered in evidence says the track rises slightly to a point about half way between Odenton and the crossing and then drops about thirty or forty feet to the mile, and the engineman, who was called by the plaintiffs, said, "the track is up-grade from Odenton, until you get a little below the crossing, may be 100 or 200 feet." Just what he meant by "below the crossing" is not clear, but he said he was running at about the same speed at the crossing as he was at Odenton, which he testified was 45 or 50 miles an hour. The county road crosses the railroad from the westerly side at an angle of about twenty-eight degrees, — running in a southeasterly direction. Mr. Silver was going from his home at about two o'clock one Sunday afternoon when the accident occurred; the weather was clear and the tracks were described by the witnesses as being in the usual condition.
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. None 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, *68 by reason of the testimony that no whistle was blown or danger signals given, and while counsel for the plaintiffs did not in terms concede that there was contributory negligence on the part of the deceased, they relied on what is sometimes called "Negligence in the Third Degree," and contended that there was sufficient evidence to go to the jury on the question whether the company's agents could by the exercise of reasonable diligence have avoided the consequences of Mr. Silver's negligence in going upon the tracks.
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 Odenton, 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 witness 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, *69 although there was some evidence tending to show that the curtains on his buggy were down. His horse was gentle. The photographs offered by the plaintiffs, together with the other evidence, make it difficult to understand why any one would have attempted to cross the tracks when he knew or could easily have known by the use of his senses that a train was approaching, and in the absence of eye witnesses or other explanation it would seem that it must have been owing to what has caused so many accidents at grade crossings, — that he assumed he could get over before the train reached him and took the risk of not doing so.
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 *70 against them, but the fact remains that no one testified to seeing the accident and hence no one can say from the record just how it occurred.
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 check 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. Frank 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 *71 feet below the crossing, or somewhere near that, was asked: "Was there or not any effort made to stop it?" and replied, "You could see that he commenced to cut down. I could tell by the working of the engine that he was stopping." He was then asked, "Where did the train stop?" and answered, "1400 feet below the crossing," and said he measured the distance. If then it took the engineman fourteen hundred feet to stop, Mr. Snyder was either wholly mistaken as to the time within which such a train could be stopped, or there was some trouble about the equipment which prevented it from being stopped as soon as it could ordinarily have been, for surely we can assume that the engineman did stop as soon as he could after striking the buggy, but the appellants proved that it did stop for 1300 or 1350 feet after the witness Clarke saw that he was beginning to stop. Mr. Clarke did not say the engineman was not attempting to stop before he reached the crossing. He was about one thousand feet on the east side of the crossing, and his view of the train was cut off by some trees and bushes and hence he could only testify as to what he saw after the train came within his view, which was after it passed the crossing.
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 *72 been possible for his horse to have gone faster than it was going, or whether he miscalculated the distance and speed of the train and drove in front of it when it was too late for the engineman to stop or check his engine in time to avoid the collision. It is true the witnesses said no danger signals were given, but whether such signals would have been of use necessarily depends upon when Mr. Silver got on the track and when he was discovered. It may have been that the engineman could then see that Mr. Silver had seen the train, and if so it was more important for him to do all in his power to check the train, and not stop to give signals of his approach which would have been useless unless Mr. Silver was unaware of the approach of the train and could have hastened the speed of his horse beyond what it was then going.
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, but 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. But, 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. *73
The attorneys for the appellants exhibited commendable zeal and industry in the preparation of their brief in which are cited a large number of the numerous negligence cases which have been before this Court. It will be conceded that the duty of a railroad company to avoid the consequence of a plaintiff's negligence does not depend upon whether it is a steam railroad or one using some other motive power, but the cases in this State clearly point out the difference, in the effect of the rule as to the negligence of the plaintiff and of the defendant, between accidents occurring in a city or other thickly populated locality and those occurring at public crossings in the country or sparsely settled places, one of which is McNab v. UnitedRailways,
In Consol. Ry. Co. v. Armstrong,
In Ward's Case,
In Kolken's Case,
The case of B. O.R.R. Co. v. Welch,
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. *78