Baltimore & Ohio Railroad v. Windsor

AdkiNS, L, delivered tbe opinion of tbe Cburt. Tbis suit grows out of a collision at Buck Lodge crossing of tbe Baltimore and Ohio Railway in Montgomery County between a fast express train of the company and a Ford automobile truck of tbe plaintiff. Tbe railroad' runs east and west and tbe county road north and south, tbe approach to tbe crossing from tbe south being up. grade. On tbe east side of tbe county road and south of tbe railroad is the station.

At this point trains going both east and west run on a single track. .South of tbe track is a switch track or siding. There is a curve in tbe railroad extending from some distance west of tbe crossing to 1,200 or 1,400 feet east thereof, and on the east side there is a cut, tbe deepest part of which is about eighteen feet. Tbe station obstructs the view of tbe track east of the crossing to one approaching from tbe south and tbe south bank of tbe cut conceals trains approaching from tbe east, until within 'a short distance of tbe crossing. There is some conflict in the testimony as to just bow far and from what points trains approaching from tbe east can be seen by one travelling on the county road from tbe south, but tbe photographs and accurate measurements establish satisfactorily that tbe line of vision .along tbe front of the station, which is about ten feet, or perhaps1 a little less, south of the south rail of tbe switch, extends eastwardly along the track 'for 398 feet; and' at a point about one foot north of tbe north, rail of tbe switch' there is an unobstructed view ⁴³¹ eastwardly for 445 feet.

The main trank and the switch, track are each 4 feet 8% inches wide and the1 distance between them is 8 feet 3% inches. The projection of the engine over the rail was '2 feet 7% inches. The accident occurred at about 5.30' o’clock on Sunday afternoon, June 12th, 1921. The plaintiff with three companions in the truck approached the crossing from the south.

Cooley, one of the party, “was sitting1 on, the right hand side on the part of the truck body. My feet were on the running board.” He was facing towards the east. His position was practically in a line with, just slightly to the rear of, the plaintiff and another one of the party who occupied the seat of the ear. The fourth member of the party Was sitting" in ,a chair in the trade back of plaintiff.

The plaintiff was driving. Ooolcy testified that they “pulled up to the crossing. He (the plaintiff) throwed his car out of gear and listened for a bell and looked for the train and didn’t see no train. He started across and just about the time the front part of the truck got on the switch, about that time I got the glimpse of the train and I jumped off.

They pulled across about the center of the main track and the train struck the machine in the center”; that plaintiff' looked both ways; that witness said down the road before they reached the crossing ‘watch the crossing’; that about four feet from the crossing they had the oar in neutral, and started across in low gear; that witness jumped about the first rail on the switch. “Of course the machine Willis was driving the front part was up on the switch.” Q. Did yon give any warning when you jumped ? A. No, sir, I didn’t have time. Q. Didn’t have time to say anything to them ?' Did yon hear the train coming ? A. No, sir, jnst when'I ’saw it.

Q. Did you listen for it? A. Yes, sir. Q. Will you state whether or not you heard the train'blow? A/ No, sir,.-! didn’t.

Q. Were you listening for the train'to-blew'?;' A.; Yes,T sir.v .Qb And looking too? A. We couldn’t see: until'we got up on the switch.".. I couldn’t see until I got from-around the'view of ihé .station:' Q. ;WHát, if anything;did • you Lear - as you r approached 'thé ■ crossing V A.: I never ⁴³² beard nothing. Q. Do yon know where that electric alarm bell is?

A. Yes, sir. Q. Will you state whether or not you heard that bell ring?' A. No, sir, I didn’t hear it ring. The plaintiff, Willis T. Windsor, in answer to a request by his counsel to tell just what happened said: “I came up past Mr. Wade’s store. I was running about ten miles an hour.

I slowed my machine down as I approached the crossing and stopped — stopped it about a foot to the side of the track and looked and listened and I shifted my machine in low gear and started to1 cross. As I got on the main track I saw the machine coming in the opposite direction. About that time I heard a roaring noise. I kind of glanced around and before I could see what it was it struck us.

That is the last I remember.” The machine referred to was an automobile approaching the crossing from the north, which, according to the testimony of other witnesses, stopped about thirty feet from the crossing. Plaintiff further testified that his front wheels were about a foot from the south rail of the switch when he stopped; that he looked and listened, but neither saw nor heard anything; that he looked toward the east before starting; that coming up the hill from Wade’s store, which appears from other testimony was 105 feet south from the center of the main track, he was travel-ling about eight or ten miles an hour; that when he stopped on the switch his engine continued to run; that his oar made no more noise than .any other’ machine; that he shifted to low gear when he started to cross the tracks; that he knew there was an alarm bell there and had heard it before, but it was not ringing when he proceeded to cross the track; that he had crossed the track two or three times before the day of the accident; that he did not hear any one shouting a warning; did not see Dooley when he jumped; that the oar was in good condition and he was an experienced driver; there were no curtains on the sides of the car to obstruct his view; that he looked to the right and to the left and Nicholson who sat on his right also looked; that he could not see clear down to the cut; could only see about 50 feet toward the east; that after he started off he “saw a machine coming ⁴³³ in tbe opposite direction and kind of watcihed Mm”; be continued to look ahead of him then; didn’t stop! again to look or listen; was struck in about two seconds. As we ha,ve said above, we are satisfied from the position he places himself in, plaintiff could have seen, if he had looked towards the east, at least 398 feet; and if a train was not within that distance when he started to go over the tracks, it must have been at least six seconds before it reached the crossing, running forty-five miles an hour. The other two members of plaintiff’s party were killed in the accident.

Two of the occupants of the car at. the north of the orossi-ing testified: One of them, said ho did not see the train until it ran into the truck; the other saw the smoke coming out of the cut; both of them heard the train before the. accident, one of them even before it got into the cut; both of them sa,y the automatic alarm, bell did not ring. Neither of them stated whether or not he heard the whistle or bell of the engine. Several of the train crew testified that the whistle blew and the bell rang at the usual places for that crossing. Two other witnesses also swore to this.

The latter also, stated they heard the .automatic bell ringing. Defendant proved that the train was running at about forty-five miles an hour. The fireman on the engine testified that he saw: the truck approaching the crossing running at high speed and that it did not stop' before the collision. There was evidence on the part of the plaintiff that .an automatic electric bell had been maintained at this crossing by the defendant for eighteen or twenty years; that prior to that time a watchman was stationed at the crossing.

Several witnesses testified that about two hours after the accident, they were at this point and observed a train passing going west and they noticed that the electric alarm hell did not ring. The ticket .agent, at Buck Lodge testified that, this electric hell was inspected on Saturday morning, the day before the accident, between 8 and 9 o’clock by the regular inspector ⁴³⁴ o-f the company, and that it was in condition after that and rang all right. Witness left the station at 3.30 o’clock Saturday afternoon, and did not return until after the accident; that the station is closed on Sundays. “Q." When you left at 3.30 was it in condition ? A. I couldn’t say right at that time.

There wasn’t a train coming at that time that I can remember, but it was in condition as far as I know. It w.as ringing the last train that went by.” Witness further testified that he was the only person connected with the company that would be in charge of that station from Saturday evening to> Monday morning; that he went back to the station .after the accident and was there between half past five and six o’clock. One train went by in that time going east and the bell rang; that when he returned Monday morning the bell was working all right for trains going both east and west “as far as I remember”; that when the bell got out of order he would notify the company at once to have it repaired; it was his duty to do so; and he always did it; didn’t remember how many times he had reported the bell out of order prior to June, 1921; didn’t remember whether it was out of order at all; might have reported it at other times than the day before the accident, it had been some time ago “and I don’t remember how many times; whether oncei or twicef; that he made reports to Mr. Sanbar, the signal man; the report just before the accident was on Friday evening and Mr. Sanbar got there on Saturday morning and repaired the bell that day, and it rang all right; didn’t know what was the matter1 with it. There is no testimony as to1 any time when'the bell was out of order except 'at the time of the accident, and 'a few hours afterwards, and on the Friday before; or that -it was ever permitted to' remain out of order.

The declaration filed in the'case contains'three counts charging'negligence respectively, as follows: : 1. 'In-the failure-to give notice of the:approach of the train by.engine signals: . 2.. .In the failure'of the-automatic signal. .beU-oto ring because of its broken condition and being out of repair. ⁴³⁵ 3. In the failure of the defendant to maintain the automatic signal in proper condition in pursuance of the provisions of article 23, section 303 of the Code of Public General Laws of Maryland. A demurrer to the declaration and to each count thereof was overruled, issue was joined on the general issue plea. This appeal is from a judgment on a verdict in favor of plaintiff.

There are two bills of exception, one to a ruling on evidence, and the other to the ruling on the prayers. No point is