Baltimore, Chesapeake & Atlantic Railway Co. v. Turner

Offutt, J., delivered the opinion of the Court. The appellee in this case was injured on July 5th, 1925, in a collision between an automobile in which she was riding as an invited guest, and a railroad train, operated by appellant over its tracks. The accident happened between one and two o’clock in the afternoon of a clear, hot day, and at a point where the appellant’s tracks intersect the state highway between Pittsville and Salisbury, some five or six miles from Salisbury. The automobile was an Overland sedan, and there were in it at the time six persons: Mr. Guy Winters, who owned and was at the time driving the car, Mrs. Winters, his wife, who was sitting on the front seat beside him, their two small children, one of whom was seated on the floor in the rear of the car, and one to the left of and on the same seat with Charles R. Turner, who sat in the middle of the rear seat next to his wife, and Mabel R. Turner, who sat on the right-hand side of the same seat.

As a result of the accident Mrs. Turner suffered quite severe injuries, for which she asked the appellant to compensate her, and upon its failure to do so, she brought this action, which resulted in a judgment in her favor from which the defendant, the Baltimore, Chesapeake and Atlantic Railway Company, appealed. There are ten exceptions, of which the first eight involve questions of evidence; the ninth relates to the rulings of the trial court on the prayers, and the tenth to an order disposing of a motion for a new trial. ²¹⁹ Running through the entire case were two questions of fact upon which the appellee’s right to recover mainly turned, and, before dealing with the exceptions, in order to grasp their relative significance and importance, the substance of the evidence material to them will be stated. These questions are: (1) At what point did the train first become visible to persons in the automobile in which appellee was riding looking towards it as it approached the crossing, and (2) whether certain roadside signals were so placed and so conspicuous that a person occupying appellee’s position in the car in which she was riding should in the exercise of ordinary care have observed them. The record covers some two hundred and sixty-four pages; it contains much extraneous and immaterial matter, such as colloquies between court and counsel, much of the material evidence found in it is cumulative, and to attempt to state it all in any detail is unnecessary, and would tend more to confusion than clarity.

We deem it sufficient, therefore, for the purposes of this case, to state briefly in narrative form its substance and effect. The plaintiff’s evidence tended to prove that she and her husband were invited guests in an Overland sedan automobile, owned by Hr. Winters, who was, at the time of the accident, driving it from Pittsville towards Salisbury over the state highway which runs from Ocean Oity through Salisbury; that the day was warm, and the windows, of the car were open; that Mrs. Turner, who was on the rear seat behind Mrs. Winters, on the right hand side of the car, was not familiar with the location of the crossing in question, although she had recently driven over it, and that, because of the elevation of the concrete, she was unable to see the tracks and did not realize that they were nearing it; that as they drove along she looked out from time to time on either side at the scenery but more often on the right hand side, from which the train approached, but she did not see its approach, until it “merged past” a com and bean “patch,” when the automobile was about fifty or seventy-five feet from the crossing; that the “patch” of corn and the bean vines, starting ²²⁰ at the railroad about one hundred and twenty-five feet from the crossing and running at an obtuse angle from the railroad, prevented her from seeing the approach of the train until she was fifty or seventy-five feet from the crossing; that she did not hear it approaching, that no bell was rung, no whistle blown nor any other warning of its approach given; that eight or nine hundred feet away to the east (on her right hand side) there is a “patch of woods” through which the train which struck them (running east) passed; that on her right, as the car in which she was riding approached the the tracks, were several houses along the road, the nearest one to the railroad being about one hundred and fifty or one hundred and seventy-five feet from it; that from ten to twenty-five feet from the track there was a weather-beaten “stop, look, and listen sign” on two cross arms bolted to an upright piece of timber about ten or twelve feet back from the road; that farther from the crossing on the same side, in the field, about forty or fifty feet back off the road,” there was a square sign placed at an angle on an upright, which sign carried an oil advertisement, and also the legend, “railroad crossing” in small letters; that farther still from the crossing there was a small “state road” sign, so defaced that it indicated nothing at all; that the driver of the automobile saw the first of these three signs as he approached the crossing, but that Mrs. Turner saw none of them; that Mr. Turner, one of the occupants of the rear seat, when the automobile was about forty or fifty feet from the tracks, saw the train then about eight hundred feet away, approaching at a terrific speed; that Mrs. Winters, who saw it at the same time, exclaimed, “Oh, Guy, there is a train,” and Mr. Winters, who was driving the car at about twenty-five or thirty miles an hour, applied his brakes, and it skidded or slid onto the tracks, where it was when the train struck it, and the train ran on for some eight or nine hundred feet before it stopped; that as a result of the collision Mrs. Winters was killed, and the other occupants of the car injured, some slightly and others more seriously. ²²¹ The appellant’s evidence amounted to a common traverse of a large part of that offered by the appellee to -which we have referred, and tended to prove these facts: — That the engineer on the train which collided with the automobile blew two long and two short blasts on its whistle, which were plainly heard at the crossing; that it first blew as it emerged from a tract of woodland about 984 feet from the crossing, and when it stopped blowing its whistle a bell was rung until it was quite near the crossing: the automobile was visible to the fireman on the engine which drew the train; that the patch of butter beans which appellant said prevented her from seeing the approach of the train was over 186 feet from the crossing and the vines were trained on poles about five or five and a half feet high, and the “patch” consisted of three rows four feet apart, planted four feet apart in the row; that the “stop, look, and listen” cross arm sign was visible, legible, and conspicuous, located about twelve and a half feet from the track within the limits of the highway; that the oil sign was in a field about thirty and one half feet from the crossing and about nineteen feet from the concrete road way, was about thirty inches square, and there was conspicuously painted on it the words “railroad — danger”; that the state highway sign was of steel about fourteen by twenty-one inches, and was about two hundred and seventy-five feet from the crossing and eight and three-tenths feet from the edge of the road, and had on it the word “danger,” which, while defaced, was legible; that all of those signs were on the east side of the road, or on the right hand of one approaching the crossing from the direction of Ocean City; that on the same side of the road there was a gas filling station 869 feet away from the crossing, a dwelling 570 feet away from the crossing and about 150 feet from the highway, and another dwelling and a group of outbuildings over 300 feet from the crossing; that the nearest point of this group of buildings to the road was about 318 feet from it, and tbe farthest point about 450 feet from it; that as the train approached the crossing it was running from forty to forty-five miles an hour, ²²² and the fireman who was standing on the “apron” of the locomotive first saw the Winters automobile when it was about five hundred feet from the crossing, and he kept it continuously in view until immediately before the collision; that he had no reason to believe it would not stop, the view was unobstructed, and he had begun to ring the bell as soon as the long blasts on the whistle had sounded, and it was not until the engine was within seventy-five feet of the crossing that he saw that the automobile was not going to stop, and he then yelled to the engineer to stop, and the engineer at once applied the brakes, but was unable to avoid striking the automobile, and when the train finally stopped about seven or eight hundred feet beyond the crossing, a part of the motor was found jammed beneath the “pilot bolt” of the engine. Returning now to the exceptions, as we have stated, the first eight related to the rulings of the trial court upon questions of evidence, and of these the seventh and eighth are waived, .so that of these exceptions we are only asked to consider the first six, which all involve the same question and may be grouped.

In dealing with these exceptions it must be noted that the defendant relied in part, if not mainly, on contributory negligence as a bar to the action, and that according to his theory of the case a vital link in that defence was the fact, ifj it could be shown, that the approaching train was in open and unobstructed view of persons approaching the crossing from the direction of Ocean City, and must have been seen by the occupants of the Winters automobile, had they looked in its direction, in ample time to have enabled them by the exercise of ordinary care to have avoided the collision. And that, as the appellant had the right to operate its trains at any speed consistent with the safety of its passengers, the only negligence with which it was charged was its alleged failure to give some adequate signal of its approach, and that if it were in plain view of one approaching the crossing, its failure to give such warning would not be so- likely to result in injury to travelers on the highway, as if its approach were concealed by trees, ²²³ shrubbery, growing plants, or other obstructions, and whether it could have been seen by the plaintiff or the driver of the automobile, in time to have enabled them by the use of ordinary care to have avoided the accident, would bear to some extent upon the question of whether it was guilty of primary negligence in failing to give such warning. George W. Brown owned the farm on which the corn and butter bean “patch,” which appellee alleged screened the approaching train from her view, was located, and after describing the “patch” of corn and beans, he was asked these questions, which are involved in the exceptions under consideration: “Now, state whether or not a person travelling along the highway, between your house and the crossing, could see a train as it emerged from the woods, notwithstanding the fact the butter beans and corn were there? * * * Now, will you say whether or not this patch of corn and butter beans, to which you have referred in your testimony, would screen the view of a train approaching from the right from a person travelling along the highway from the entrance of your place to the railroad crossing? * * * 'Will you state in what way, if any, this patch of beans or corn obscured the view of the approach of the train on the right of a person travelling in a machine from the entrance of your place to the railroad crossing? * * * Did or did not the patch of beans and corn interfere with the view of the train as it approached the crossing from the right of a person travelling in a machine from the entrance to your place to the railroad crossing? * * * Now, did you or not mean to say that this patch of beans and corn would interfere with the view of a train approaching from the right ? * * * Could you see a train as it approaches from those woods on the right of the bean poles?” Objections to all of these questions were sustained, and while the witness was permitted to describe the “patch” of beans, he was not allowed to say whether they would prevent a person approaching the crossing from seeing an oncoming train, notwithstanding the fact that Mrs. Turner had already ²²⁴ testified that they had prevented her from seeing it. In testifying to that she was obviously testifying to a fact, and not expressing an opinion, for it is not easy to conceive of a more tangible and concrete fact than that an obstruction, whether it be a house, a hill, or a “patch” of beans, shuts out the view.

And if she was able to testify that the “patch” of beans did cut off her view of the approaching train, there is no reason known to us why others, having the same faculties and at least as much knowledge of the situation as she had, should not be allowed to testify that it did not cut off the view of an approaching train. The only suggestion made in support of these rulings is that they called for an opinion, and that the court suggested what counsel for appellee considered the “proper” questions which he should have asked. But the questions suggested by the court were not directed to the same point as those propounded by counsel for appellant. Counsel are not required to propound questions suggested by the court, but they are entitled to frame their own questions, and, so long as they violate no rule of law, procedure, or evidence, to elicit through them such facts as will in their judgment tend to support their claims, and the point is not whether the questions suggested by the court were proper, but whether those asked by counsel were improper.

Nor do the questions call for the expression of an opinion. If one standing in front of a building is asked whether he can see a person behind it, he is not asked for an opinion but for a fact. And the effect of these questions is no more than that. Brown, who lived on the spot, was asked whether the patch of beans would screen an approaching train from the view of persons approaching the crossing along the state highway between his house and the crossing.

It either did or it did not, and any one familiar with the situation could have told at a glance whether it did