CAMPBELL, ETC. v. Patton

Marbury, J., delivered the opinion of the Court. Separate suits were brought by Sandra Jean Patton, infant, Mary Jane Lee, infant, and their parents, against Leroy A. Campbell, and The Baltimore and Ohio Railroad Company to recover damages for injuries sustained when a school bus, owned and operated by Campbell, was struck by B. & O. train No. 4, the Diplomat, at the Mt. Lake—Loch Lynn crossing in Garrett County on September 10, 1959. The cases were consolidated and tried together before a jury (Fraley, J., presiding) .

The narrs allege that Campbell was negligent, among other things, in driving the bus onto the tracks in front of the oncoming train, in stalling it on the tracks, and in failing to take proper measures to safeguard the children on the bus after it stalled; and that the railroad’s agents were negligent, among other things, in operating the passenger train at a high rate of speed, in a careless and negligent manner, approximately one-half of a mile west of the crossing on straight track, with knowledge and view of the peril created by the stalled school bus in ample time to have stopped the train before impact, failed at that time to apply emergency brakes, and permitted the train to travel a great distance before the brakes were applied, thereby causing the train to crash into the school bus and injure the infant plaintiffs. The jury returned its verdicts upon special issues submitted to them in favor of the plaintiffs and against both defendants, and judgments were entered accordingly, from which four appeals were brought here. ¹²⁸ On the morning of September 10, 1959, at approximately 8:30 A. M., a school bus operated by the appellant, Campbell, carrying twenty-seven school children, stalled on the railroad tracks at the Mt. Lake crossing and was struck by an eastbound B. & O. passenger train, which was running about ten minutes late at the time. Campbell had operated a school bus under contract for the Garrett County Board of Education for eight years prior to the accident, having been assigned the same route the previous five years.

Operation of this route called for his arrival at the Mt. Lake crossing at about the same time every morning. The Mt. Lake crossing is situated on the edge of Loch Lynn where Paul Street crosses, at right angles, the B. & O. main line tracks, into Mt.

Lake Park, immediately across the tracks. Paul Street is 26 feet wide, and runs north and south. The tracks run east and west. Although “bumpy” there was no substantial defect in the crossing.

Approaching the crossing from the south the grade is 3%, approaching from the north it is 4.5%. The crossing consists of three tracks, a spur track on the south, an eastbound track in the middle, a westbound track on the north. The school bus was traveling in a northerly direction as it approached the Mt. Lake crossing.

On the south, or Loch Lynn, side of this crossing the State Roads Commission had painted lines on Paul Street 13 feet south of the spur track, indicating the proper place for vehicles to stop. These lines are 44 feet 2 inches from the south rail of the eastbound main line track, on which the train approached. Between the lines on the pavement and the eastbound main track is the spur track. The north rail of the spur track is 31 feet 3 ¿4 inches from the south rail of the eastbound track.

The crossing slopes downgrade from south to north. It is protected by the usual crossarms, bell and flasher lights which were designed to give warning of an approaching train when it reached a signal switch 2250 feet west of the crossing. From the center of the crossing the two main line tracks run straight west for 2600 to 2700 feet, then gradually curve to the right to a point where the farthest view of the crossing from the west by a person standing on the tracks was 3120 ¹²⁹ feet, and proceed for a mile or so through open country into Oakland. Along the south side of the eastbound track between the curve and crossing are located several objects which are material to these cases.

The control which activates the signals at the crossing is located 2250 feet west of the crossing. The whistle post is located 1683 feet west of the crossing. A “home” signal is located 1291 feet west of the crossing. An order board is located 591 feet 1 inch west of the crossing and is in front of the center of the structure known as the Mt.

Lake Park tower. The train consisted of three diesel units and eight cars, with an overall length of 824 feet 2j4 inches. The three diesel units had a combined length of 192 feet. The distance from the center of the crossing to the point of rest of the bus after the accident was 113 feet.

The distance from the center of the crossing to the head of the first engine, after the train stopped following the accident, was 1277 feet. On the morning of the accident when the weather was clear and dry Campbell stopped the school bus at the lines south of the spur track, opened the front door, listened and looked both ways for approaching trains, but saw and heard nothing indicating the approach of a train. From this position he had an unobstructed view of the tracks to the west for a distance of approximately 3120 feet. As the school bus started up again after stopping, the crossing signals were not in operation.

These signals, as previously indicated, were designed to give warning of an approaching train when it reached the signal switch 2250 feet to the west of the crossing. There was no evidence to show that the train was yet in sight as the bus first started moving onto the crossing. The bus proceeded slowly in second gear and crossed the spur tracks without difficulty. It was not moving faster than a person would walk, still in second gear with the motor pulling.

Campbell could not say definitely that he looked to the west while crossing the spur track, but he believed that he had done so. Other evidence indicated that the train was still not in ¹³⁰ sight, and that the crossing signals had not yet started to operate. The motor continued to function properly as the bus crossed the spur track and the 26 feet between the spur track and the south rail of the eastbound track. Just as the front of the bus went onto the eastbound track the motor started to “buckle” and stalled.

Campbell put the bus in neutral while it was still drifting slightly, and attempted to start the motor. It would not start. Although Campbell did nothing to stop the bus, it would not drift but lurched to a stop with the rear of the bus on the eastbound track and the front of the bus on the westbound track. He testified that he attempted to restart the engine, to drift the bus off the downgrade crossing, and to run the bus off with its starter, all to no avail.

Under cross examination, he gave as a possible reason for the bus not being moved by the starter that the door was open which activated the flashing lights, which “take a lot of juice.” Campbell testified that he did not see the train coming until “after I felt something go wrong with the bus”, and that when he saw it the motor had stopped but he was still drifting. At that time the train was “some distance to the west” but he was not sure how far. The front end of the train was around the curve, but he was unsure whether the whole train was. He could not remember seeing or hearing any signals at the crossing before he stalled.

The two infant plaintiffs, and another child, who were on the bus testified that when the motor of the bus faltered they looked down the track and saw the headlight of the train coming around the bend, one of them saying he also saw the engine and two cars. When the motor of the bus would not start and the bus would not move off the track, Campbell, having become aware of the onrushing train, immediately started evacuating the children through the front door. He could not remember how he got out of the bus or what he did to rescue the children. The only evidence on this point was from other witnesses.

One eyewitness testified to seeing Campbell run to the rear of the bus, attempt to flag the train, and then return to the front and rescue a fallen child an instant before the impact. Another eyewitness testified that Campbell was pulling children out of the front door of the bus and pushing them to safety. ¹³¹ The bus was a 1951 GMC, thirty-six passenger, school bus. It had a total length of 22 feet 5 inches, and a width of 8 feet. It was painted the official school bus orange, and bore the inscription “Garrett County School Bus.” In addition to ordinary headlights and tail lights, the bus carried the regulation school bus flashing red lights which were located on each corner of the roof.

The evidence shows that it had a front door on its right side, and also an emergency door at the rear which could be opened manually, either from the inside or from the outside. The emergency door was never opened at the time of the accident. The bus was powered with a six cylinder motor, and was equipped with a four speed transmission. What caused the bus to stall was never determined.

It had been inspected as late as August 18, 1959. The inspection disclosed no defects which could relate to the operation of the bus. On the day of the accident the bus had made several stops and starts without difficulty. There was no testimony that the bus had ever stalled before.

Campbell admitted that he did not know why it stalled, nor did examination of it by the State Police or mechanics after the accident determine the cause. The Diplomat stopped without incident at Terra Alta, then Oakland, and proceeded eastward toward the curve west of the crossing. The speed of the train was 48 to 50 miles an hour, which was the normal, authorized speed. When the train came out of the curve the fireman, Hollen, observed traffic moving at the crossing.

Immediately thereafter, and while the engine went past the control which activates the signals at the crossing (2250 feet west of the crossing), and past the whistle post (1683 feet west of the crossing), where the engineer, Droege, said he blew the standard two longs, a short and a long, the attention of the fireman and engineer was drawn to observing first the home signal (1291 feet west of the crossing), and then the order board (591 feet 1 inch west of the crossing) to the side of the track. Both of these signals govern the movement of the train, and railroad operating rules require that both engineer and fireman look for them,, and verbally confirm the signals to each other. When both ¹³² signals were found to be clear according to the engineer and fireman, they both practically at the same instant, looked to the crossing and noticed a vehicle appearing to foul the track. The engineer immediately put the train’s brakes in full emergency operation, but the train was unable to stop before striking the bus, although tests after the accident indicated the brakes were working properly, and the court instructed the jury that there was no evidence to the contrary.

It was agreed at the trial that the train came to rest with its head 1257 feet east of the center line of the crossing, its rear end being just east of certain dwarf signals which are 419 feet east of the west side of the crossing. Nathan James Patton, father of one of the infant plaintiffs, testified that he was looking out the front window of a store at the corner of the crossing, saw the bus stall and immediately ran out on the porch of the building. He was-conscious of no crossing signals when he looked out the window, but they were working when he reached the porch, a distance of about 14 feet from where he had been standing. The witness, Edward Morris, a trackman for the Western Maryland Railway Company, testified that he was near the crossing and saw the bus moving slowly over it.

Just as the bus reached the eastbound track it took two or three jerks and stalled, with the back end on the eastbound track when the crossing signals began to operate, and he heard the train. Since it is not disputed that the signals at the crossing worked properly when activated by the train, the effect of this testimony is to place the train about 2250 feet from the crossing at tEe time the bus stalled. 'The engineer and the fireman both testified that after checking the home signal and order board and then seeing the bus, the engineer applied the brakes in the vicinity of the home signal, which is 1291 feet from the crossing. The conductor and flagman, who were further back in the train, testified that they felt an emergency application of the brakes, which they thought occurred somewhere west of the tower. The witness Shrout, a telegraph operator in the signal tower, testified that the train was in emergency as it went past the tower.

Morris, who observed the train as it drew near the crossing, testified ¹³³ that he knew it was braking because he saw blue smoke coming up from the wheels. There was uncontradicted evidence that as soon as the emergency brake lever is pulled sand is dumped from the engine to the rails to aid in slowing the train. A Maryland State trooper on the day of the accident observed and marked, and the next day actually measured deposits of light colored, unweathered sand on the rails from where the train stopped east of the crossing back to 1443 feet west of the crossing. At 1443 feet the sand was spread over a relatively wide area, narrowing as it got closer to the crossing.

Since the sand, according to the testimony, was dumped from each of the three diesel units simultaneously, the inference is that the emergency brake was applied by the engineer in the lead unit when his cab was approximately 190 feet closer to the crossing than where the sand first appeared on the tracks. This would place the lead engine about 1250 feet from the crossing, when the sanding mechanism took effect. Two expert witnesses for the B. & O. testified to the braking action of the train as shown by the engine’s speed recorder. This is an automatic device, locked and inaccessible to the train crew, which constantly records the movement of the engine by means of a pencil or stylus making direct contact with a running tape.

This tape indicated that the train had been traveling at 50 miles an hour when it was subjected to rapid deceleration in speed. Readings indicated that, with a possible margin of error of no more than 100 feet, the train went 2112 feet after the brakes began to take effect. Since the train stopped 1257 feet east of the crossing, this indicated that a recordable braking effort began 855 feet west of the crossing, plus or minus 100 feet. There was uncontradicted evidence that about 4 seconds must pass after the brake lever is applied before effective braking action begins.

At 73 feet per second this would indicate the application of the brake lever by the engineer at a point about 1147 feet west of the crossing. With the addition of the 100 foot maximum margin of error, the distance would be 1247 feet. Thus, the evidence of the speed tape, the visual observations of the State trooper concerning the location of the sand, and the testimony of the ¹³⁴ crew all indicated that the emergency brake was applied near the home signal. The speed tape indicated that the train had decelerated from 50 to 40 m.p.h. when it went over the crossing.

The engineer, Droege, estimated his speed at the crossing to be 15—18 m.p.h. One of the B. & O. expert witnesses testified that the brake operation reaches maximum efficiency just before the train comes to rest. Several eyewitnesses (among them Mason and Randall) testified for the plaintiffs and for the appellant Campbell, that they watched the train approaching the crossing and that it did not appear to be slowing down. They did not observe any sparks or other indications that the train was in emergency.

The testimony was conflicting as to whether or not the whistle was blown. The engineer testified that he began to blow the whistle at the whistle post (1683 feet west of the crossing) and other witnesses heard it, but this was contradicted by the testimony of Campbell and Randall, who said they did not hear a whistle blow. Both appellants made motions for directed verdicts in their favor and for judgments n.o.v., which were denied. In passing upon motions for directed verdicts and judgments n.o.v. this Court has many times held that the evidence and all logical and reasonable inferences deducible therefrom must be considered in the light most favorable to the plaintiff’s cause of action.