Baltimore & Ohio Railroad v. Plews

Smith, J., delivered the opinion of the Court. A runaway B & 0 Railroad locomotive struck and killed Albert Plews (Plews) at a street crossing in the ⁴⁴⁵ Curtis Bay area of Baltimore City on March 25, 1969, at approximately 2:00 p.m., thereby giving rise to this litigation. Appellant, The Baltimore and Ohio Railroad Company (B & 0), appeals judgments totaling $200,000.00 entered against it as a result of that accident. Suit was brought by appellee Catherine E. Plews as surviving widow and also as administratrix.

Suits were also brought on behalf of the infant children. We shall affirm the judgments. The questions presented to us are seven in number, namely: (1) whether there was sufficient evidence as a matter of law to support a finding of primary negligence; (2) whether Plews was guilty of contributory negligence as a matter of law; (3) whether the trial judge committed prejudicial error in his charge to the jury; (4) whether the opening statement for the plaintiffs-appellees was “so improper and prejudicial to the defendant-appellant that a mistrial should have been granted”; (5) whether “the closing argument by the plaintiffs-appellees [was] so improper, inflammatory, and prejudicial to the defendant-appellant that the verdict should be set aside”; (6) whether the trial court can properly allow “testimony with regard to damages as to matters not of a compensable nature and [whether] the response to an improper question [was] inflammatory and prejudicial to defendant-appellant”; and (7) whether there was sufficient foundation laid for the damages projection given by an expert and whether his opinion as to damages was properly admitted in evidence. B & O’s diesel locomotive D-9719 was on a “fire track” 1 at its Curtis Bay yard at approximately 8:30 a.m. on the day of accident.

Certain of B & O’s employees observed it at various times up to and including 1:15 p.m. on that date. An employee testified that at that time he looked at the isolation switch, saw that it was off, saw that the ⁴⁴⁶ engine run button was off, and saw that the hand brake was on. B & 0, pursuant to a demand for admission of relevant facts, admitted that when engines are left on the fire track for service or storage it is customary to leave their motors idling. It further admitted that the motor of this particular engine had been idling for several hours prior to this unfortunate incident.

B & O’s general locomotive foreman testified that this was done for reasons of economy. If the engine run button is in an “off” position and the isolation switch is in “isolate” or “off” position, there is no power for the engine to move from one position to another even though the throttle is moved into a forward position or opened wide. Likewise, if the isolation switch is in an “off” position and the engine run button is in an “on” position, there is no power and the engine cannot move from one position to another even though the throttle is moved. This also was established by a demand for admission of relevant facts.

The parties made commendable use of this discovery tool. It is conceded that two teenagers who had “hooked school” climbed up into the engine cab “to get some flares and some gloves and stuff”. By their story, one of the boys “fell back against something and the engine started roaring up”. They then jumped off, leaving the area.

They expressly denied turning on any buttons or switches. The engine moved out, unattended. It was observed by certain of B & O’s employees who made efforts to protect the Pennington Avenue crossing. The assistant terminal trainmaster ultimately boarded and stopped the locomotive after the collision in question had taken place.

He then observed that the wheels of the engine were what he called “blue hot”, hotter than “the red stage”. He noted that the independent brake was then on and drew the inference that the “blue hot” situation was brought about by the pressure of the brake shoes. He also noticed that the engine run switch was on, that the isolation ⁴⁴⁷ switch was in the “run” position, and that the throttle was in full forward position. Pennington Avenue at its point of intersection with the B & 0 track is a four lane highway.

It runs almost due north and south. The railroad tracks run in a generally east-west direction. A tank truck driver just prior to the accident was proceeding northerly on Pennington Avenue in the right-hand or slow lane. Approximately 300 feet prior to reaching the crossing he put on his four-way flash signals to indicate that he would stop at the railroad crossing as he was required to do with his type of cargo.

At that point he noted the Plews vehicle begin to move out into the left-hand lane to pass him. The truck driver estimated the speed of his own vehicle immediately prior to slowing down at 30 miles per hour. The Plews vehicle gradually passed the truck. The passing was complete when the truck fully stopped some 40 feet from the nearest of the two sets of tracks.

This point was approximately 50 feet from the second track. In response to a question relative to the speed of the Plews vehicle the witness said: “I don’t know whether he increased or decreased his speed. I can’t tell you that because I wasn’t watching him continuously. I was bringing my vehicle under control.

I only periodically glanced—I did make mental notations as to what was going on. I know that he was and did pass me. Whether he increased or decreased, I do not know.” He heard no brakes being applied. Weather conditions were clear and dry.

The collision between Plews’ pickup truck and the locomotive occurred at the second of the two tracks. Plews at that time was pulling back into the right lane. As the truck driver put it: “It was directly in front of me, but it was coming to the right lane again and the only part of him that I can recall in the right lane was the ⁴⁴⁸ right front wheel and fender, and he was hit at the right front door. There is only one door in a pickup truck on the right side.” There were no other eye witnesses produced.

B & 0 presented evidence indicating that at a point 40 feet south from the south rail of the south track (the track nearest Plews) along the east curb of Pennington Avenue there was clear and unobstructed vision of 925 feet in the direction from which the locomotive came. The fire track was located between Benjamin Franklin Junior High School and the Fairfield Apartments. Youngsters and adults had been observed going back and forth over these tracks between the school and the apartment house. Some of them had from time to time been seen in the cabs of locomotives and had been admonished by employees of B & 0 to leave the area.

Prior to the date in question some of these young people had been observed taking gloves and flares from the cabs of locomotives. It was established that the locomotive had locks built into the doors and latches on the windows, both of which could be locked, but which were not. It was further established that the service track on which the engine was sitting did not have a derailing device on it and that switches could have been set so that if the locomotive went into motion it would have ended up within the railroad yard rather than at the Pennington Avenue crossing. B & O’s regulations required a locomotive left with engine running to have its independent brake “fully applied” and, if not left in the charge of a hostler or shop forces, to have the hand brake also applied.

There was no hostler on duty in the Curtis Bay yard on the day of the accident. B & O’s regulations required trains and engines at the Pennington Avenue crossing to stop before moving over the highway. They further required that a member of the crew dismount from the train and stop traffic by ⁴⁴⁹ use of a red flag by day, red lantern at night, before giving a signal for a train or engine to proceed across Pennington Avenue. They also specified that locomotives should sound their bell and horn, which, of course, was not done in this case.

It was established through the testimony of an individual who had gone back and forth across the Pennington Avenue crossing with Plews many times at least since 1964 that Plews was acquainted with the fact that a member of the train crew stopped traffic before a train or engine crossed Pennington Avenue. Speed of the locomotive at the time of the impact was not established. The truck driver said, “It was travelling fast. That is all I can say.” A B & 0 drawbridge operator estimated its speed at approximately 30 miles per hour when it crossed the drawbridge over Curtis Creek, about 1.7 miles beyond the Pennington Avenue crossing.

PRIMARY NEGLIGENCE In considering liability we start with the fact that in determining whether a defendant’s demurrer prayer or motion for judgment n.o.v. should be granted the court is obliged to resolve all conflicts in the evidence in favor of the plaintiff and to assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff’s right to recovery. Beck v. Baltimore Transit Co., 190 Md. 506, 509 , 58 A. 2d 909 (1948), and cases there cited. B & O correctly cites Wash. Sub.

San. Comm. v. Musgrove, 203 Md. 231, 238 , 100 A. 2d 27 (1953), for the proposition that in an action to recover damages for injuries caused by the alleged negligence of the defendant, the burden of proof is on the plaintiff to prove that there was a neglect of duty by the defendant and that the injuries sustained were the direct consequence of such neglect of duty. It quotes the opinion of Judge (later Chief Judge) Prescott in Aleshire v. State, 225 Md. 355 , 170 A. 2d 758 (1961), where he said for the Court: “Of course, the test of foreseeability, or rea ⁴⁵⁰ sonable anticipation as it is sometimes called, must be judged by foresight, not in retrospect. The wrongfullness, vel non, of a person’s conduct must be evaluated in the light of the risks apparent to him at the time, and not by looking backward ‘with the wisdom born of the event.’ Cardozo, C. J., in Greene v. Sibley, Lindsay & Curr Co., 177 N. E. 416 (N. Y.).

See also, Martin G. Imbach, Inc. v. Tate, [ 203 Md. 348 , 100 A. 2d 808 (1953) ].” Id. at 367 . This case is in no way comparable to that of Fredericks v. Northern Cent. R.R., 157 Pa. 103 , 27 A. 689 , 22 L.R.A. 306 (1893), cited by B & O. In that case a throw-off switch which would have derailed the coal cars had been closed by the trespasser so that it was not operative. The coal cars had been" detached by the trespasser from other cars to which they were coupled.

The brakes which had been set previously were loosened by the trespasser. The Pennsylvania court said: “It will thus be seen that the collision was produced by the criminal trespass of a stranger to the defendant company, for whose acts they were not in the least degree responsible, and over whom they had no control. The offence of which the boy McCoskey was guilty, in misplacing the switch, was a most atrocious and abominable crime * * *.” Id. at 115-16. “Here the injury was not the result of any defect in any of the appliances used by the defendant, nor by any want of skill, foresight and diligence which was humanly possible. The injury was not the result of any act of carelessness or negligence on the part of anybody.

It was the result, exclusively, of a deliberate, intended, willful, affirmative, positive act of criminal trespass. No mere act of carelessness or ⁴⁵¹ negligence could have turned over the switch, which was set to derail the cars, so that it would throw the cars on the track instead of off. No mere act of carelessness or negligence could, or would, have taken out the coupling pin which held the cars together. No mere act of carelessness or negligence could, or would, have driven back the ratchet which held the brakes in place, four of them in all, so as to set the cars in motion.

All, and every one, of these acts required special physical effort, exerted for the very purpose of releasing the cars from the entirely sufficient restraints which had been imposed upon them by the company’s agents, and these efforts were made each one after the other, in a wicked and deadly succession, until the horrible purpose was accomplished and the work of death and destruction resulted.” Id. at 119-20. It likewise is not comparable to Mars v. Delaware & H. Canal Co., 54 Hun 625 , 8 N.Y.S. 107 (1889), also cited by B & 0, in which it was conceded that the engine was moved maliciously. As we see it, this case is controlled by the holding of our predecessors in Maryland, D. & V. Ry. v. Brown, 109 Md. 304 , 71 A. 1005 (1909), cited in Annot., 24 A.L.R. 124 (1923), entitled “Negligence in leaving live locomotive unattended.” That railroad operated between Love Point at the northern tip of Kent Island in Queen Anne’s County and what was then known as Rehoboth but is now known as Rehoboth Beach, Delaware. The bridge across Kent Narrows was just south of the present U. S. Route 50 highway bridge. 2 At about 8 o’clock on an August evening in 1905 a passenger train had just crossed Kent Narrows onto Kent Island when it had a head-on collision with a runaway locomotive which, as Judge ⁴⁵² Pearce put it for the Court, “was unmanned and running wild on the same track”.

The engine had been left on a siding with wheels chocked and “a bar in the centre”. It had been examined at 5:30 on the evening of the accident at which time it wás found that “her throttle bar and reverse bar were all right and she was in first class condition for service”. There was conflicting testimony as to the condition of the engine with particular reference to its throttle. The railroad moved for a directed verdict on the ground that since the evidence showed that the engine was placed on a side track with “her steam shut off by the closing of her throttle valve, her reverse bar in the centre and her wheels chocked” and since there was “no evidence to show that engine No. 1 was defective in such a way that she could start off in the condition and under the circumstances in which she was placed by the witness Exeter on said side track, and inasmuch as the evidence show[ed] that the defendant employed competent employees and placed them in charge of said engine”, the verdict should be for the defendant.

Judge Pearce said for the Court: “We think, notwithstanding Exeter’s testimony on that point, that it was still a question for the jury whether the actual starting, which was proved, was due to the negligence of the defendant either in the original purchase of a defective engine,- in the failure to make proper inspection, or to keep a proper watch on the engine while standing on the track, and these prayers were in our opinion properly rejected.” Id. at 321 . The presence of young trespassers in the railroad yard and on the locomotives with the knowledge of the agents and servants of B & 0 was shown. It does not take much effort to foresee that a young man who might look for gloves or fusees in an engine cab might be tempted to move a throttle bar just to see how it works. It un ⁴⁵³ doubtedly was for the purpose of forestalling the sort of thing which here took place that provision was made for the variety of controls in the engine cab to which we have heretofore made reference.

It is probable that those controls were intended to make unnecessary the type of control used in M., D. & V. v. Brown (chocked wheels and “bar in the centre”). It is conceded that for this locomotive to move three things had to happen: the isolation switch had to be “on”; the run button had to be “on”; and the throttle had to be moved. The boys said they touched no control other than the throttle which they claimed to have fallen against. As a matter of fact, there was a question as to whether, in. the light of its construction, “falling against” the throttle would have actually moved it.

If the controls of the engine had been left as B & O’s employees say they were left, moving the throttle would not have placed the engine in motion. Therefore, an issue of credibility was raised for determination by the jury. CONTRIBUTORY NEGLIGENCE B & 0 claims Plews was guilty of contributory negligence as a matter of law and that, therefore, its motion for a directed verdict at the conclusion of the defendant’s case and its motion for a judgment n.o.v. should have been granted. In pressing its points relative to contributory negligence B & 0 analyzes the decedent’s duties “for the purposes of clarity” in two phases: the first is “whether the decedent’s reliance on defendant’s voluntarily imposed custom of flagging the crossing in question relieves the decedent of any further duties to be observed on his part for his own safety and in effect grants him the license or privilege to proceed across defendant’s tracks at the grade crossing in question in total reliance on the absence of the customary flagman”; the second is “if the decedent was obliged to observe some precaution for his own safety, notwithstanding the absence of the defen ⁴⁵⁴ dant’s flagman, do the uncontroverted facts in evidence dictate that, as a matter of law, the decedent was guilty of contributory negligence, thus preventing the plaintiffs from recovering damages from the defendant.” In considering contributory negligence we must bear in mind the basic rules of law here applicable as summarized in Balto.

Transit Co. v. Castranda, 194 Md. 421 , 71 A. 2d 442 (1950): “The question of contributory negligence must be considered in the light of all the inferences favorable to the plaintiff’s case that may be fairly deduced from the evidence. Where there is a conflict of evidence as to material facts relied on to establish contributory negligence, or more than one inference may be reasonably drawn therefrom, the question should be submitted to the jury. In order that a case may be withdrawn from the jury on the ground of contributory negligence, the evidence must show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds. * * * In addition, before a person killed in an accident can be declared to have been guilty of contributory negligence as matter of law, the trial court must give consideration to the presumption that he exercised ordinary care for his own safety in accordance with the natural instinct of human beings to guard against danger.” Id. at 434 . The burden of proving contributory negligence is on the defendant, in this instance B & O. Gresham v. Comm’r of Mot.

Veh., 256 Md. 500, 509 , 260 A. 2d 649 (1970). We approach this case bearing in mind what Judge Adkins said for the Court in Baltimore & O. R. R. v. Windsor, 146 Md. 429, 439-40 , 126 A. 119 (1924). There, in ⁴⁵⁵ response to the argument that to refuse to pass upon the question of contributory negligence as a matter of law would be equivalent to holding that in every suit growing out of an accident at a crossing, where there was a bell and in which there was any evidence of a failure of the bell to ring, the question of contributory negligence must be submitted to the jury, he said the Court was dealing only with the facts and circumstances of that particular case. Here too we are concerned only with the facts and circumstances of this case.

This case is close to the situations which prevailed in Patapsco R. R. v. Bowers, 213 Md. 78 , 129 A. 2d 802 (1957), and Pachmayr v. Baltimore & O. R.R., 157 Md. 256 , 145 A. 611 (1929). In Bowers Judge (now Chief Judge) Hammond prefaced his review of a number of prior Maryland cases, including Windsor , involving crossing accidents, with the comment: “This Court has four times decided that an implied invitation arises from the failure of a railroad to warn of the approach of a train at a crossing, where it customarily gives such a warning and that such an assurance of safety lowers the standard of care ordinarily required of a motorist at a crossing and has an important bearing upon whether or not, under the circumstances, due care was used by the injured plaintiff. [ (citing cases) ] ” Id. at 82-83. Pachmayr was summarized in Bowers as follows : “The Pachmayr decision was one in which a railroad conductor, while driving a ¿ruck, was struck at a crossing at which he o'ten worked for the railroad, by an engine running backwards. It was the railroad’s custom to stop engines before sending them over the crossing and to post a flagman to warn traffic whenever a crossing was to be made.

When Pachmayr was ten or twelve feet from the tracks, he ⁴⁵⁶ slowed down, noticed the engine backing, and then went on, and was hit and killed. Judge Urner, speaking for the Court, said that before the victim could be judicially declared to have been contributorily negligent, due consideration must be given not only to all inferences of fact tending to support the opposite view, ‘but also to the. important presumption that he exercised ordinary care for his own safety. * * * It does not appear that he drove on the track without looking for dangers which might be imminent, and that he thus acted in heedless and complete reliance upon the assumption that the practice of posting flagmen for passing trains or locomotives would in no instance fail to be pu.’sued. * * * This case is an appropriate one fir the application of the principle that, while a traveller on a highway is not relieved of the duty of exercising care at a railroad crossing because the danger signals usually employed there, to his knowledge, are not at the time displayed, yet the implied assurance of safety from the absence of the customary warning is a circumstance materially affecting the question whether the proper degree of care was exercised.’ Contributory negligence was held to be for the jury, essentially because of the lack of warning plus a right to assume the engine would stop before crossing as it usually did.” Id. at 85. In Bowers a truck driver made a full stop and looked right and left before crossing the first of three tracks. There was nothing on the first and second tracks, but on the third he saw a diesel locomotive to his right, about 75 feet from the crossing.

It was standing still with some of the crew standing around it. He crossed the tracks slowly. At the second or middle track when he was about 75 feet from the third track he looked right and left again and saw the rear of the diesel locomotive, still ⁴⁵⁷ motionless where he had first seen it. A large mobile crane between the middle and third tracks blocked out the rest of the locomotive at that point and thereafter all of it until the truck driver was some 25 or 35 feet from the third track.

After he saw the locomotive for the second time he continued on toward the third track. He did not thereafter look to his right. His stated reason was that having seen the diesel standing still with men around it on the ground when he was at the first track and having again seen it still motionless when he was at the second track, he thought it was not going to move across the road. He said his belief was reinforced by the fact that there was no watchman to flag down vehicular traffic.

There was testimony that the usual procedure was for a brakeman to guard the crossing when trains were about to cross it. His attention was also diverted in the last 25 to 30 feet before reaching the third track by a tractor-trailer approaching on the narrow roadway from the opposite direction. The plaintiff’s trailer was struck by the diesel locomotive after the tractor and some six to eight feet of the trailer had crossed the third track. It was established that the railroad’s operating rules required a man to ride on the front of the locomotive whenever such shifting operations were taking place.

On the issue of contributory negligence in Bowers , the Court said: “Bowers’ testimony was that not only was he reassured by the absence of any watchman or flagman, but that this implied invitation to a safe crossing, together with the view he had of the stationary diesel locomotive, with its crew standing on the ground, seen one hundred sixty feet from the third track and the