Baltimore & Ohio Railroad v. Newton

Stockbridge, J., delivered the opinion of the court. The facts out of which this oaae arises are relatively simple, and were detailed with exceptional particularity in the case of The Baltimore & Ohio Railroad v. State, use of McCabe, 133 Md. 219 , to which reference is hereby made, rather than to repeat them! at length. It has been assumed by the appellee in this case that it was necessarily controlled by the action of the Court- in the McOabe case. Such, however, is far from being the fact.

McCabe, the plaintiff in that case, and Newton, the plaintiff in this case, were riding in an automobile crossing the tracks of the Baltimore & Ohio B&ilroad at the Pbint of Bocks, in Frederick County, a few minutes after one in the morning, when the machine was struck by a westbound train of the Baltimore & Ohio Bailroad. McCabe was killed, Newton was seriously and probably permanently injured, and the machine demolished. The automobile in which they were riding was being run by Newton, and McOabe occupied the relation of a passenger, and the previous case decided, and only decided, that the negligence of the driver could not be imputed to a passenger, unless it is shown that the passenger contributed to the accident by his own negligence, and whether there was or was not such negligence was a question of fact- to be submitted to the jury, and not a question of law for the Court. In the present case Newdon was the driver of the auto, and, therefore, the rule laid down in the McOabe case does not extend to the present case.

Ordinarily, where the defense set up is that of contributory negligence, there is a conflict between the evidence adduced on the part of the plaintiff, and that offered on behalf of the defendant. Here the sole direct, evidence upon the'acts of the plaintiff immediately preceding the accident is that given by himself. He states that he stopped, looked and listened at a point from twenty-five to thirty feet' before reaching the crossing, at which there was nothing to obstruct his view, and from which ²³ the railroad was in plain sight eastward as¡ far as Washington Junction; that he neither saw nor heard anything to indicate the proximity of danger, and then started his machine, and did not come to a stop again before the impact of the collision; that he first saw the train when he was on the track, and it was then only a few feet away. There is testimony upon the part of several witnesses, and it is entirely uncontradicted by the plaintiff, that the train was a heavy train consisting of a locomotive and eight cars, with an acetylene headlight brightly burning, rushing westward at a speed of about twenty-five miles per hour.

It is. further testified and admitted that the warning bell was not rung, but it is also