Dietrich v. Canton Railroad Co.

Henderson, J., delivered the opinion of the Court. Charles Dietrich, driving his wife’s automobile west on O’Donnell Street in Baltimore City, across single tracks of the Canton Railroad Company, was struck by a backing and unattached engine, proceeding north on the crossing. He sued to recover damages for personal injuries; his wife sued for damages to the automobile. The trial court directed verdicts for the defendant in her case, on the ground that the evidence of primary negligence was legally insufficient, and in his case on the lack of such evidence, and also on the ground of his contributory negligence.

O’Donnell Street at the point of collision is about 58 feet wide, consisting of two eastbound and two westbound traffic lanes separated by a 4 foot island. There is a sidewalk 6 or 7 ¹²⁹ feet wide on the south side, and a chain-link fence about 7 feet high. Dietrich testified he turned into O’Donnell Street, a boulevard, from Ponca Street, from 150 to 200 feet east of the crossing, and proceeded toward the tracks at a speed of about 20 miles per hour. The time was about 9:30 A.M. on Sunday morning, August 5, 1956. tie was very familiar with the crossing, although it was not regularly used by the company, and apparently only for switching operations.

There was a sign at or near the crossing reading: “Look out for the Locomotive,” but no gates, electric lighting device, or watchman provided. The crossing was level, but there was a ten degree grade upwards toward Ponca Street. Visibility was good, although the street was wet. There was no traffic at the time except one automobile coming east on O’Donnell Street, some distance away.

Although Dietrich testified that he could not see through the wire fence (the photograph introduced in evidence indicates otherwise), it is clear that, because of the grade and the height of the engine (22 feet), the engine could have been seen over the fence. Dietrich testified that he did not stop, look or listen. He did not hear the warning bell on the engine until he was about 10 feet from the tracks, when he saw the engine for the first time. Fearing a skid, he did not try to stop, but instead speeded up to cross first.

He failed to do so, the engine striking the left side of his automobile. On the other hand, there was abundant evidence that the bell began ringing when the engine was at the whistle-post 15 to 40 feet south of the fence, and continued while the engine crossed the street. This was corroborated by an impartial witness. The engine crew saw Dietrich turn into O’Donnell Street, and proceed towards the crossing, apparently slowing down.

Just as the engine reached the island in the center, Dietrich’s car suddenly speeded up. The engine was traveling at a speed of less than 4 miles per hour, but it was too late to stop. A simple calculation shows that the engine traveled about 38 feet from the point where it reached the fence to the point of impact. The automobile must have traveled about 5 times that distance, at 20 miles per hour, in the same interval.

We think it is perfectly clear that Dietrich was guilty of contributory negligence and that there is no basis shown for ¹³⁰ an invocation of the doctrine of last clear chance. Sears v. Baltimore and Ohio Railroad Company, 219 Md. 118 , and cases cited. Nor can he bring himself within the line of cases where reliance upon the lack of a customary warning may present a jury question. Cf.

Patapsco R.R. Co. v. Bowers, 213 Md. 78 , and Gosnell v. Baltimore & O. R. Co., 189 Md. 677 . So far as Mrs. Dietrich is concerned, it is conceded that she would not be bound by the negligence of her husband, in her action for damages to her automobile, so we must consider further the question of primary negligence. It is contended that primary negligence can be inferred both from the failure of the company to provide better warnings and from the conduct, or lack of due care, by the train crew. There was no evidence of any violation of company rules.

Cf. Pennsylvania R.R. Co. v. State, 188 Md. 646 . Nor was there any evidence of violation of statutory requirements. Sec. 600 of the Charter and Public Local Laws of Baltimore City (1949 Ed.), enacted by chapter 420, Acts of 1884, and relied on in the Gosnell case, supra, required the installation of safety gates at every grade crossing.

The section was expressly repealed by Ordinance No. 1102 of the Mayor and City Council of Baltimore (1954-1955). Instead, new sections were added following