Brehm v. Philadelphia, Baltimore & Washington Railroad

Boyd, C. J., delivered the opinion of the Court. The appellant sued the Pennsylvania Railroad Company and the appellee for killing two of his horses, while being driven at a. point on the railroad used' by the defendants, where a public highway is alleged to cross the tracks. During the trial the plaintiff dismissed the case against the Pennsylvania Railroad Company and it was afterwards with ³⁰⁴ drawn from the jury on a prayer offered by the appellee, on the ground of contributory negligence of the driver. The first two bills of exception embrace rulings on the admissibility of evidence and the third presents the action of the Court on the prayers.

As that is the most important question, we will first consider the prayer of the defendant above referred to. The accident happened about 6.35 o’clock on the evening of July 4th, 1908. Albert Jacobs, who then lived on the Wilton Stock Farm, which belonged to the plaintiff, and of which Dr. Tubbs, the stepfather of Jacobs, was manager, was driving two horses of the plaintiff which were hitched to a wagonette. There were seven persons in the wagonette, including the driver and a little girl.

Although the appellee does not concede that the road over which the team was being-driven was a public highway, there was undoubtedly evidence tending to show that it was, and it will be so treated in the consideration of the case. The railroad at the point where the accident happened runs north and south and the highway runs east and west—at least they are sufficiently near those directions for the purposes of our discussion, and we will so speak of them. There are two tracks at this crossing, which is known as Dinsmore’s Crossing—the one on which the trains run from Philadelphia to Baltimore being spoken of in the evidence as the south track, and the other the north track. The nearest station north of the crossing- is Swan Creek Station, and the nearest south (towards Baltimore) is Aberdeen Station.

Oakington Signal Tower is 6,800 feet, Swan Creek Station 2,700 feet, a bridge over Swan Creek about 1,400 feet, and there is a whistling- post 1081 feet north of the crossing. There are about two miles of straight track from Oakington past Dinsmore’s Crossing to Aberdeen. There is a down grade from a point about a thousand feet south of Oakington to a point near the Swan Creek bridge, where an upgrade begins and continues to Aberdeen, about a mile and a half— ³⁰⁵ there being this upgrade on the southbound track at Dins-more’s Crossing. A little north of Swan Greek Station there is an overhead bridge which carries a highway over the railroad tracks, known as the Eobin Hood Eoad.

The appellant argued' that the driver was not the plaintiff’s servant and the team was not being used on his business, and hence he was not responsible for the contributory negligence of the driver, even if that be held to exist. But the declaration expressly alleges in the first count that the team was being driven “by the servant of the plaintiff, using due care,” and in the second count it is alleged that the carriage and horses were being driven “by the servant of the plaintiff,” that “the driver of said horses used ordinary and reasonable care in approaching and going upon said crossing,” and “without any negligence on the part of the plaintiff or his servant the said horses were killed,” etc. Moreover, the plaintiff upon the stand did not make such claim as was made at the argument, and by a prayer he offered he sought to submit the question of the contributory negligence of the driver to the jury. Under such circumstances we are not called upon to enter upon a discussion of the effect of the alleged contributory negligence of the driver upon the right of the plaintiff to recover, as the plaintiff cannot bring the defendants into Court to answer the charges thus deliberately made by him, take such position as he did during the trial, and then ask us on appeal to adopt a view wholly contrary to the one thus taken by him, which was not even raised in the lower Court so far as disclosed by the record. There is a conflict between the witnessess for the plaintiff and those for the defendant as to whether any signals were given of the approach of the train, but as the case is presented we must assume the testimony of the witnesses for the plaintiff to be correct, as far as it goes.

Having disposed of those questions we will now refer to such of the testimony reflecting upon the contributory negligence of the ³⁰⁶ driver as we deem proper, to show why we reach the conclusion to he announced. About the place where the accident occurred the railroad mns through a cut and the highway is also in a cut to a point near the railroad tracks. The driver and other witnesses who were in the wagonette testified that they stopped in the cut, as they approached the crossing, about thirty feet from it and listened for trains; that from that point they could not see any distance up the track; that they knew the crossing was a dangerous one, and that one of them (Mrs. Still) pointed to the sign hoard which was at the crossing and said: “Row, stop, look and listen.” After stopping and listening, not hearing any train, the driver started the horses and just as they got upon the southbound track they were struck by the train known as the “Congressional Limited,” which was running very fast—the engineer said he thought about 50 miles an hour at that point, although sometimes it reached a speed of 65 or 15 miles an hour between Wilmington and Baltimore. The horses were killed and the wagonette and harness were injured but fortunately none of the persons riding in the wagonette were seriously hurt, and it was not even upset.

It had a cross seat in front on which sat the driver (Jacobs) and his grandmother (Mrs. Still), and there were two seats ranning lengthwise of the wagonette, one on each side, and those sitting on them entered from the rear. Mr. Watson was seated on the left-hand side, directly back of Mrs. Still, Mrs. Tubbs, the mother of Albert Jacobs, was sitting in the rear on the south side. Mrs. Jay was somewhere on that side and the others were not located in the testimony. It is clear that from where they said the wagonette was stopped neither the driver nor anyone in it had an opportunity to see a train approaching from the north—nor had they the same opportunity to hear that they would have had, if they had not been in the cut.

The Baltimore and Ohio ³⁰⁷ railroad also runs near the appellee’s road and one of the witnesses said they could not hear any trains on either road. The engineer, fireman, conductor and baggage master, who were on the train, and a track walker who was approaching the crossing swore that the signal was given for the crossing, but the occupants of the wagonette swore they did not hear any signal, and one or two of them said that none was given and, in considering this prayer we must assume the testimony of the latter to be correct. If the train was running fifty miles an hour it only took sixteen seconds to go from the whistling post to the crossing, and if sixty miles only twelve and a fraction seconds. Or to state it another way, the train in the one case would move about sixty-seven feet and in the other about eighty-eight feet,in a second, while if the vehicle was going at the rate of six miles an hour that would be nearly nine feet a second or at four miles an hour about six feet a second.

But, although the witnesses for the plaintiff testified that they stopped about thirty feet from the crossing, it is very evident that they had no definite knowledge of the distance, and none of them explained whether they meant that the horses’ heads were that distance, or whether they referred to the wagonette, and if so, what part of it. As Dr. Tubbs testified that the distance from the horses’ heads to the eyes of the driver was seventeen feet and to the rear end of the wagonette about twenty-six feet, it will be seen that it was a very indefinite statement to say they stopped thirty feet from the crossing. Jacobs said:-“I stopped, I guess, about thirty feet back.” Mrs. Tubbs said she would not like to say how many feet, or how close they were, but she thought that the horses’ heads would have been on the track before they could have seen far enough down the track to be safe. Mrs. Jay said, “we stopped', I suppose, about thirty feet back.” She also s'aid the cut was higher than the wagonette.

Mr. Watson, whose testimony was ruled out, said, “when we got with ³⁰⁸ in about thirty feet of the track the driver stopped the team.” On the other hand, Mr. Stone, a civil engineer and Assistant Supervisor of the Maryland division of the railroad company, said he measured from the west rail of the southbound track, in the middle of the road, four distances, 12, 20, 25 and 30 feet; that standing 12 feet from the traolc on the road he could see north, up the railroad track, to Oakington signal tower (6,800 feet), could see from that point the railroad track and a train on it anywhere between the signal tower and the crossing; from a point 20 feet from the west rail there is the same view as at .the point 12 feet; that at 25 feet from the track there is a clear view of the railroad track for 3,000 feet, or to a point beyond Swan Creek Station, could have seen a train anywhere in that distance on the southbound track, and that at a point 30 feet from the west rail he could see 235 feet up the track. On cross-examination he said the right of way of the railroad is seventy feet wide, that the center of the right of way is midway between the two tracks, and from that center line to the west rail is a little less than eight and a half feet. It was therefore twenty-six and a half feet- from the west rail of the southbound track to the west side of the right of way. He also said that “after you pass 30 feet from the west rail the view of the track to any considerable distance was cut off by the bank.” Six or seven witnesses who were present when the measurements were made and the observations taken corroborated Mr. Stone.

One of them was a trackwalker on that section of the railroad and was near the crossing when the accident happened. He said that the grass had been mowed on the west side of the track, north of the crossing, all the way up to the top of the bank, and about three or four feet over the top just before the day of the accident, and he and others swore that there had been no changes in or about the crossing from the time of the accident to the time of the observations. ³⁰⁹ Although the observations were made in the winter time— just before the trial of the case—and the accident was on July 4th, it is perfectly apparent that the witnesses for the plaintiff did not accurately know the distance from the track at which they stopped. It is not shown what part of the wagonette Mrs. Jay was in, but she said, “The cut is higher than the wagon,” and it is evident that she was at least far enough back to be in the cut. She admitted on cross-examination that she did not know “whether it was thirty or forty feet, because I cannot judge.” Jacobs’ testimony on this point was: “Q. What prevented you from seeing north ?

A. The bank. Q. Anything else there to obstruct the view? A. Ho, sir; nothing but a bank and a little clump of wood, but that is farther up and the bank was the only thing.” It must be time that if there is in the winter time such views as were testified by the seven or eight witnesses from the points indicated, the bank could not have obstructed their view while the parties in the wagonette were at any of those points. It would further seem to be perfectly apparent that if their view was obstructed at any of those points, it was only by grass or little bushes which is all they testified to as being there in July, and it is difficult to understand why they could not have at least heard the rumbling of a train going fifty or more miles an hour, if there was no other obstruction and they were not behind the bank.

The bank might possibly account for their-not hearing, but it cannot be said that if a train is going upgrade at such a speed, or even if there was no grade, that persons listening for it could not hear its rumbling, if-there was no other obstruction than grass and some small bushes. It is true that Mr. Watson said that there was a downgrade from Swan Greek Station to the place of accident, but the assistant supervisor of the road and the engineman certainly knew more about the grade than he did, even if his testimony is treated as before us. The testimony therefore clearly shows that Jacobs must have stopped the horses when he was so far back that he was ³¹⁰ behind the bank, where they could not hear, the noise the train must necessarily