Baltimore & Ohio Railroad v. State Ex Rel. Andrews

Markell, J., delivered the opinion of the Court. This is an appeal by defendant from a judgment in a suit under Lord Campbell’s Act on account of the death of Olin R. Andrews in a collision between his automobile and defendant’s train at Roxbury, Maryland, on September. 23, 1946 at about 2 P. M. The principal question presented is whether the court was in error in refusing to direct a vérdict for defendant on the ground of contributory negligence. On this question evidence and permissible inferences most favorable to plaintiff will be stated as facts. The collision occurred at the crossing of the single-track railroad and a county road at Roxbury Station, at the State “penal farm” (State Reformatory for Males) about six miles from Hagerstown.

At the crossing the county road runs east and west; the railroad runs approximatély north and south, but north of the crossing curves toward the west. The train, a regularly scheduled train due at almost exactly two o’clock, coming from the north, from Hagerstown toward Weverton, consisted of two cars and was driven by a gasoline engine in the ²³⁰ front part of the front car. Roxbury is a flag stop; the station was a small frame shed between fifty and sixty feet south of the county road, east of the track. Mr. Andrews was driving his Ford sedan west.

He was Farm Manager at the penal farm and had been for ten years. He and his family lived in a house east of the railroad; the main building of the farm was west of the railroad. He had to cross the railroad every day to go from his house to the main building, either by the road at Roxbury Station or by a road two or three hundred yards south. It was about the same distance either way, but he more frequently used the other road.

At the Roxbury crossing there was an electric bell, which was out of order and not working at the time of the collision and two days before. There is no evidence that Andrews knew it was not working. Colonel Munshower, Superintendent of the Reformatory, and other witnesses for plaintiff characterize the crossing as very dangerous. He says the terrain is “very bad”, a low terrain and a “very bad” curve, “the approach from the west to the east is even more dangerous than the one from the east to the west, but in either case the obstruction of the view is very bad” to a train coming from the north towards Weverton.

A few minutes after the accident he took a number of photographs, which plaintiff offered in evidence. Other photographs, taken the next day by another witness, were also offered by plaintiff. Still others, taken nine days after the accident, were offered by defendant. East of the railroad the county road was bordered by a thick high hedge on the north side which completely obstructed view of the railroad on that side and extended to, but not on, the railroad right of way.

Beginning almost perpendicular to this hedge was a hedge running north, curving toward the west, several hundred feet long, bordering but not on the east side of the railroad right of way. Between these hedges and the east rail there were also some weeds and other foliage. West of the railroad and apparently west of the right of way ²³¹ there was also thick high foliage, which limited the view of the curve from the crossing. One witness for plaintiff says, “the view from the road to the approaching train is very bad and that view vanishes with the condition of the undergrowth along the railroad, when it is kept down, it is not so bad, then again you can hardly see”; in the morning before the accident “the undergrowth there and hedge was high, I would say you could not see approximately any more than one hundred feet up the track, there is a deep curve and the undergrowth was very bad.” When you are standing twenty feet east from the east rail and looking north, he would say “you could not see fifty feet up the railroad, I do not believe you could see the railroad at all twenty feet you are back of the hedge.” State Trooper Basore, another witness for plaintiff, who arrived on the scene soon after the accident, said at a point fifteen feet east of the east rail you could see, standing eye level, seventy-five to eighty feet.

Another witness for plaintiff, when asked how far a train from the north could be seen from an automobile within fifteen feet of the east rail on the day of the accident, said, “I would say not over seventy-five feet”. He also said weeds had been cut before, and “I would say in the next couple of days” after, the accident. We need not consider from the photographs alone whether this testimony of these witnesses is physically impossible and is shown to be so by both plaintiff’s and defendant’s photographs. But see Baltimore & O. R. Co. v. Bruchy, 161 Md. 175, 177 , 155 A. 346 .

Colonel Mun-shower, on cross-examination, when asked at what point a train from the north can be seen as you approach the crossing from the east, said, “I would say to be exact you would have to be within one car’s length to actually see the train approaching until it got 150 yards or 200 yards of the crossing itself, that is about true without measuring,” an automobile length, “the front of the car would have to be within about twenty to twenty-five feet of the track to get a view of that curve.” He also ²³² said that one of defendant’s photographs, taken twenty feet east of the east rail, is a true representation of the situation as it existed at the time of the accident. Trooper Basore himself, on cross-examination, when shown the same photograph, said he thought you could see the track up to the third telegraph pole, and could see a trian if it Was coming down there. The third telegraph pole is about 350 feet from the crossing. When asked by the court, “You do not mean to say you would not see a train further than seventy or eighty feet if you were within fifteen feet from the crossing, looking north?”, he answered, “I believe you could”.

Sergeant May, a witness for plaintiff, says “about a car length or fifteen feet you could see up the track, I would say, a train five hundred feet.” Three witnesses, one for plaintiff, an inmate of the penal farm, and two for defendant, the engineer and a passenger on the train, testified as eye-witnesses to the collision. Plaintiff’s witness, working as a “trusty”, was raking the lawn in front of the head guard’s house. The house was at the crossing, at the south-west corner. Witness was twenty-five feet from the crossing.

He says Mr. Andrews “stopped at about ten feet from the railroad, there was no whistle or no bell ringing, no sound of a train, after stopping, he paused four or five minutes [later corrected to seconds] and started off, after he started off the locomotive came down and it happened.” When he stopped the front of his car was about ten feet from the rail. “He stopped, looked both ways and started off after being stopped about five minutes [seconds]”. He was about ten feet from the east rail when he stopped. He looked to the right first, then to the left. After he started his car in motion, he gave a glance to the right, as he was going over.

Witness could not see the train then, did not see it until it hit him, it came out of a bend. The whistle was not blown at all. Witness never saw the train nor heard the noise until it hit Mr. Andrews. The engineer says, at a “whistle” sign about 700 feet from the crossing he blew the whistle for the conductor to ²³³ see whether he had any passengers to get off at Roxbury.

The conductor (having none) did not pull the whistle. About two hundred feet further down the engineer put the brake on, bringing his speed down from thirty-five to thirty miles per hour. Seeing no one to pick up at the station, he “knocked the brakes off and opened up”, five hundred feet from the crossing! “When I went on this crossing I looked to the right and left and saw this car and in one second, I was hit.” It hit the engine on the left side, right on the corner, broke the air line, so that he had no control of the train and could not put on the emergency brake. The train came to a stop six hundred and fifty-one feet south of the crossing.

At five hundred feet from the crossing he blew two long and one short blast of the whistle and then “prolonged the last blast right up to the crossing”. Five hundred feet from the crossing he could see a car eighteen or twenty feet east of the crossing. The automobile seemed to be coming thirty-five or