Cowen v. Dietrick

Briscoe, J., delivered the opinion of the Court. This action was brought in the Superior Court of Baltimore City to recover damages alleged to have been sustained by the plaintiff, for the loss of a horse and wagon, caused in a collision with a passenger train of’the-Baltimore and Ohio ⁴⁷ Railroad Company at a grade crossing near Lansdowne Station, in Baltimore County. At the trial of the case the Court granted all of the plaintiff’s prayers and the third, fourth and fifth of the defendant, and refused the defendant’s first and second prayers. The rejected prayers were to the effect that there was no legally sufficient evidence in the case that the accident was directly caused by the negligence of the defendant, and that the negligence of the driver of the wagon directly contributed to the accident.

The sole question presented for our consideration arises upon the ruling of the Court on these prayers, and relate to the negligence of the appellant company and the contributory negligence of the appellee’s agent, the driver of the wagon. It appears from the evidence that on the 29th of January, 1898, the boy was driving a horse and a closed wagon along the public road which crossed the railroad tracks, a short distance north of Lansdowne Station. At this point the railroad tracks run about north and south and the public road where the accident occurred runs east and west, but some distance before it reaches the crossing it runs parallel with the tracks. The train which caused the accident was coming from the south and running north towards Baltimore on the east-bound passenger track.

It was what is known as the Royal Blue, limited, did not stop at the station south of the crossing, and was running at the rate of fifty miles an hour. It is shown by a plat filed in the case that the view' at a point 185 feet from the railway track, on the public road where the appellee’s wagon was travelling, to the south is 2,200 feet to the mouth of a deep cut. The view of this cut from whence the train came, along the road to the crossing, is obstructed by the station, for a short distance. At a distance of 52 feet, however, from the railroad track there is a view to the south of 1,940 feet.

This view increased as you approached the crossing, until at the railroad, it is 2,200 feet to the cut. There is a sign post at the crossing, on which is written, ⁴⁸ “Stop, look and listen,” and at the south of the station there is a signal arm. On the outside of the cut there is a whistle post, which is 2,200 feet from the crossing. On the morning of the accident, the driver of the wagon was proceeding along the public road, delivering baker’s bread, as had been his custom for nearly a.year.

According to the testimony of two of the witnesses, he stopped about ten feet from the railroad track, looked up and down the track and then proceeded to cross. As soon as he got upon the track, the wagon was struck by the train. He and the horse were killed and the wagon was completely destroyed. It is obvious, we think, from the testimony disclosed by the record, that this case falls within the well-settled principles announced by this Court in Baltimore Traction Co. v. Helms, 84 Md. 525 , where it is said: “The right to recover depends upon two distinct propositions of fact: First, the negligence of the defendant, and second, the exercise of due and ordinary care by the plaintiff, and if the plaintiff