Baltimore & Ohio Railroad v. Harris

Thomas, J., delivered the opinion of the Court. The declaration in this ease charges that the defendant maintained a number of tracks across Williams street, one of the public streets of Cumberland, Maryland, and that on or about the 20th day of October, 1911, the equitable plain ²⁶³ tiff “was lawfully traveling along said Williams street, and using due care and caution, and approached the crossing of the defendant over said” street, which crossing “at that time, was partially occupied by an engine of the defendant company, in charge of an engineer and fireman of the defendant, who were then and there acting as its servants and agents; that the plaintiff stopped at said crossing and waited for a long time” for the “defendant, its servants and agents, to remove said engine off said crossing so that she might pursue her way over said crossing to her work at the Rooter’s Dye Works, in Cumberland; that after she had waited for more than five minutes for the said engine to be taken off of the said crossing, the engineer and fireman of the defendant, in charge of said engine, called to her, and told her to pass around in front of said engine, and cross on over the crossing, and that thereupon the plaintiff, using every care and caution on her part, started across the said crossing, upon the solicitation and invitation of the agents and servants of the defendant so in charge of said engine, — and had proceeded so far as to be upon the track upon which said engine was then and there standing, and directly in front of said engine, when, without any notice or warning of any kind” from the agents of the defendant in charge of the engine, or any other person, “the whistle of said engine was suddenly blown by the said engineer or fireman in charge of the same, in an entirely unreasonable manner, causing a loud and shrill sound, while the plaintiff was directly in front of said engine, and at the same time the said agents and servants of the defendant — in charge of said engine, and knowing the position of the plaintiff directly in front of said engine, unlawfully, negligently and carelessly, without any warning whatever to the plaintiff, opened the cylinder cocks on said engine, and then and there permitted an unusual and unnecessary quantity of steam to escape from the said engine, and an unusual and unnecessary noise to be made by the escape of said steam, and that by reason of the said careless and ²⁶⁴ negligent, unusual and unnecessary whistling,' noise and escape of steam,” caused by the agents of the defendant, “in charge of said engine and acting in the line of their employment, while the plaintiff was directly in front of said engine, the plaintiff became shocked with fear, so that she became and was unconscious, and lost control over her actions, which caused her to fall down.upon the railroad track in front of said engine, and that as she fell, her mouth struck one of the rails of the track upon which said engine was standing, and her front teeth were broken and injured, and her jawbone was broken and splintered, etc.” It further charges that the injuries complained of were directly caused by the negligence of the servánts of the defendant “in blowing the whistle of said engine on said crossing at said time and place, in an unlawful, unusual and unnecessary manner, and in negligently and carelessly causing an unusual and unnecessary amount of steam and noise to escape from said engine,” while she, without any notice to the plaintiff and to the knowledge of the said servants of the defendant, was passing in front of said engine; that “the said escape of steam and the said blowing of the whistle were such as were calculated to frighten a woman crossing a railroad track directly in front of the engine, and that these facts were well known” to the servants of the defendant in charge of said train,” and that her said injuries ought to have been foreseen “by said servants, agents of the defendant” as a natural and prohable consequence of the negligence of the defendant — in so negligently and carelessly blowing the whistle of said engine, and allowing steam and noise to escape in an unnecessary and unusual manner as aforesaid.” At the trial the plaintiff testified that she was twenty years of age, lived with her aunt in Cumberland and was employed as a presser at Footer’s Dye Works; that she went home to dinner on the 20th of October, 1911, and that on her way back to work, she and her companion, Miss Margaret Trieber, went down Williams street; that when they reached the ²⁶⁵ crossing a train was on the crossing, and after waiting there over five minutes, a brakeman, who was on the same side the train she was, and below the crossing, told the engineer, who was in the cab and on the same side of the train, to cut' the train, and that the engineer hollowed back to the brakeman, “If there are only two let them walk around,” and that the brakeman then motioned to them to walk around; that when the brakeman told her that, she thought it perfectly safe, and she and her companion then walked up the track between the engine and some cars standing on the next track the distance of the length of a ear, the cab and engine, and as she was crossing in front of the engine, and was on the track the engine was on, about five or six feet in front of the engine, “the engineer blew an extremely loud whistle and blew steam from the cylinder cocks, and it covered the front of the engine and so scared me that I just thought the engine was going to- run over me and I fell unconscious on the track, my upper jaw striking the track, and I laid there unconscious until Miss Trieber picked me up.” She also stated that the engineer saw them as they passed the cah, and further testified: “I have seen steam coming out of engines and heard whistles blow at this same crossing. I see them every day;” that she had heard engines “blow lots of times” when she was five feet away from them, and that the whistles she had" previously heard were not near so loud as the whistle blown when she passed around the engine at the time of the accident, and which she described as “one loud shrill blast, an .extremely loud whistle, louder than I ever heard before.” The statement of the plaintiff as to what occurred when she reached the crossing and when they started to cross the track in front of the engine is corroborated by the testimony of Miss Trieber, who further stated: “When the whistle blew and the steam exhausted it frightened her (the plaintiff) and she fell with her face downward, striking her face against the rail towards Rooter’s Dye Works. The engine blew one real loud blast.

I had used that crossing nearly a ²⁶⁶ year and have heard engines blow on that crossing quito often, about five times a week, probably oftener. I would be about five or six feet from them when they blew.” When asked to tell the jury “the sound made by the blowing of that particular engine compared with the other blasts” she had heard “as to loudness,” she replied, “Well, it was much stronger than any other; like a toy cornet or horn to that of larger cornets or horns,” and said further, “A large quantity of steam came from around the bottom of the engine; it came from about the cylinders. It made a great noise.” Bernard Griminger, who was near the crossing and saw the plaintiff fall as she was crossing the track in front of the engine, says “then for a minute I couldn’t see either of them because the steam enveloped them the blowing of the whistle caused me to look that way, it blew once, an awful shrill long-blast, there was a great deal of steam.” The plaintiff produced further evidence to show that the natural and probable effect of suddenly subjecting a woman twenty years of age to a loud noise that frightened her would be, to some extent, to impair her nervous system and her control of her muscular movements, and to show the extent of plaintiff’s injuries, and then offered in evidence ordinances of the City of Cumberland making it unlawful to obstruct with a locomotive, engine or car the crossing on Williams street for a longer period than five minutes, and for any owner or person in charge of an engine or locomotive to blow the whistle of such engine or locomotive, or to allow the same to be blown within the City limits except when absolutely required by the rules of the corporation or person owning or running the same, “or to avoid accident, or in any case to blow a full valve whistle.” The defendant proved that Williams street was sixty feet wide, and allowing ten feet on each side for sidewalks, the driveway was forty feet wide; that the space between the two tracks is seven feet, and that the space' between the ends of the cross ties, “where you can walk,” is three feet. Harry W. Critehfield, one of the brakemen on the train,' testified ²⁶⁷ that he was the middle brakeman and was at the crossing; that Smith, the head brakeman, who was on the far side of the crossing, and who at the time of the trial was in a hospital, gave him the signal to cut the train; that he “parted the hose, and not being able to see the engineer he crawled up on the cab, and as he backed down off the cab he nearly backed into two ladies; that he walked back to where the train was to be cut, and gave the engineer the signal to move ahead, and that the engineer answered him by two sounds of the whistle; that the first he saw “of the young ladies was when he backed down off of the engine”; that the crossing was blocked about four minutes, and the cut was made after the engineer sounded the whistle; that “he did not tell the young ladies to go around in front of the engine " * * did not hear the engineer say, ‘If there are only two let them go around,’ * * * and did not motion to them to go around”; that the only time he saw the girls was when he backed down off the engine; that when they passed him they were between two trains on the defendant’s property, and he did not know where they were going.

W. M. Eoster, the engineer, testified that when he first saw the plaintiff and her companion he was on the engine and they were down on the right side of the engine, going towards the head of the engine; that the engine, tank and one or two cars were beyond the crossing; that he did not hallow back to the brakeman, “If there are only two girls let them walk around in front of the engine”; that he did not see them in front of the engine, and did not know where they were going when he saw them pass the side of the engine; that the brakeman was stationed at the crossing when he gave him the signal to go ahead, and ¡hat he sounded the whistle twice as an answer to his signal, because it is the rule to give two blasts in answer to a signal ; that after answering the signal he remembered about the two girls being near the engine, and asked the fireman if they were around the engine and out of the way; that he supposed they were going around, but not knowing he wanted to be sure where they were, and finding that they were out of ²⁶⁸ the way he moved the engine ahead and ent the crossing. He further' testified that in going ahead he opened the throttle io admit steam to the cylinders, but there was no expulsion or escape of steam around the cylinders, and that he did not blow a long, shrill, loud blast; that he could not see right in front of the engine, and that after he answered the signal, before going ahead, he asked the fireman if the young