Director General of Railroads v. State ex rel. Hurst

Adkins, J., delivered the opinion of the Court. This appeal is from a judgment on the verdict of a jury for $5,000, in favor of the appellee, for the death of her husband in a collision at a railroad crossing between the automobile of the deceased and a locomotive of the appellant. The accident occurred at the Severn road crossing at about 1:30 P. M. on May 25th, 1918. The first count of the declaration charges that the safety gates at said crossing were negligently and carelessly operated in that they were not lowered nor any notice given to the deceased of the approach of said locomotive and train, to warn the said deceased in time to allow him to arrest the progress of his automobile and prevent its collision with the said locomotive and train of ears, which were being operated under the direction and government of the agents, employees and servants of the defendant at an excessively high and dangerous rate of speed.

The second count, which was added as an amendment, alleges that the defendant caused and procured to be erected and maintained certain gates ⁴⁹⁸ “for the purpose of preventing travel of said tracks at said crossing, and placed a watchman there for the purpose of raising and lowering said gates as occasion required; that at the time aforesaid while the husband of the equitable plaintiff was riding in an automobile along and upon the said Severn road, exercising due and ordinary care for his safety, the said gates were siiddenly dropped on said 'automobile by the said watchman, injuring and disabling the automobile, and causing the said automobile to collide with a fast moving train at the time under the control and management of the defendant; that the said accident was caused by the negligence and carelessness of the agents and servants of the defendants in the premises, and through no fault upon the part of the husband of the said equitable plaintiff. That as a result of ■ the said accident the husband of the equitable plaintiff herein was killed and did then and there almost immediately die. And the plaintiff claims $50,000 damages.” General issue plea was filed and issue joined. The only bill of exception is to the granting of plaintiff’s prayer and to the rejection of defendant’s eighth, ninth, tenth, eleventh and twelfth prayers.

The prayers are as follows-, viz: Plaintiff's Prayer — “The plaintiff prays the Court- to instruct the jury, that if the jury should find a verdict for the plaintiff, they may, in estimating the damages to be allowed, consider what was the pecuniary loss which the s-aid Alice C. Hurst, widow, has sustained by reason of the negligent killing (if t-he jury so find) of her said husband, and may consider the reasonable probabilities of the continuance of the joint lives of said Thomas M. Hurst and Alice O. Hurst but for the negligent killing o-f her husband (if the jury so' find), and may allow her such damage as in their judgment would compensate her for such pecuniary loss as she has sustained, and reasonably will sustain by reason of said killing of her husband.” (Granted.) ⁴⁹⁹ Defendant’s First Prayer — “The defendant prays the Court to instruct the jury that the burden of proof is upon the plaintiff to satisfy the jury by the preponderance of evidence that the accident complained of was- caused by tlie negligence of the defendant.” {Granted.) Defendant’s Second Prayer — “If the jury finds from the evidence that the accident complained of was caused partly by the negligence of-the defendant contributing thereto and partly by the negligence of the husband of the equitable plaintiff, the driver of the automiobile, directly contributing thereto in any degree, then the plaintiff is not entitled to recover in this action, and the verdict of the jury must be for the defendant.” {Granted.) Defendant’s Third Prayer — “The Court instructs the jury that the train mentioned in the evidence, operated by the defendant, had the right of way at Severn crossing on the afternoon of May 25, 1918; that it was the duty of the driver of the automobile mentioned in the evidence!, as he approached the said crossing, not to rely exclusively upon the operation of the gates maintained at the crossing by the defendant, but to look and listen for the approach of trains on the railroad tracks operated by the defendant, before attempting to pass under the said gates, and if the jury shall find from the evidence that the said driver of said automobile did not as he approached said crossing at Severn on. the afternoon of Hay 25, 1918, the date of the accident, look and listen before attemping to pass under the gate upon the east side of the said crossing and if the jury shall believe from the evidence that if the driver had so looked and listened he would have seen or heard the defendant’s train in time, by the exercise of ordinary care, to avoid the accident, the plaintiff is not entitled to recover and the verdict must ho for the defendant.” {Granted.) Defendant’s Fourth Prayer — “That it is the duty of a driver of an automobile when approaching from the east the crossing mentioned in the evidence, up to the-time that he ⁵⁰⁰ reaches the east gate of the crossing, to have his machine under control and to look and see whether the gates are down, or are coming down, and to look and listen to ascertain whether a train is approaching, and .if the jury shall find from the evidence in this case that the husband of the equitable plaintiff, the driver of the automtobile mentioned in the evidence, failed to observe these precautions and that such failure on his part was the direct and- proximate cause of the accident, without which the accident would not have happened, the verdict of the jury must be for the defendant.” (Granted.) Defendant’s Fifth Prayer — “The defendant prays the Court to instruct the jury that it was the duty of the husband of the equitable plaintiff, the driver of the automobile mentioned in the evidence, as he approached the crossing at Severn on the afternoon of the accident complained of in this case, to anticipate the fact that the gates, mentioned in the evidence, at the said crossing, might be lowered at any moment for an approaching train, and it Was his duty, up to the time he reached the east gate at said crossing, to look to see whether* the same was coming down and to have his machine under’ such control as to be able to stop the same if the gate started to come down before he reached the gate, and if the jury shall find that said husband of the equitable plaintiff failed to observe these precautions, and that such failure on his part was the direct and proximate cause of the accident, without which the accident would not have happened, the verdict of the jury must be for the defendant.” (Grcmted.) Defendant’s Sixth Prayer — “The Court instructs the jury that the train mentioned in the evidence, operated by the defendant, had the right of way at Severn crossing on the afternoon of May 25, 1918, and if the jury shall find from the evidence that as the said train approached said crossing at Severn on the afternoon of May 25, 1918, the time of1the accident, the whistle on the engine of said train was sounded at or about the whistling post mentioned in the evidence, if ⁵⁰¹ the jury shall find that there, was such whistling post, and shall further find that the bell on the engine was rung and if the jury shall find that the crossing watchman was at his post at the time of the accident at the crossing, and that the said watchman lowered the crossing gates mentioned in the evidence, on the approach of said train and that the gate on the east side of said crossing was lowered before the automobile reached the said gate, then the verdict must be for the defendant, the Director-General of Railroads..” (Granted.) Defendant’s Seventh Prayer — “If the jury shall find from the evidence that on the occasion of the accident in question it took the defendant’s crossing watchman five seconds, to lower the east gate at Severn crossing from the time said gate began to move and shall further find that the gate was. lowered upon the automobile of the husband of the equitable plaintiff at the time of the accident, then their verdict must be for the defendant, the Director-General of Railroads..”1 (Granted.) Defendant’s Eighth Prayer — “The jury are instructed that there is no legally sufficient evidence under the pleadings that ■the accident complained of in the declaration was the result of any act of negligence on the part of the defendant and their verdict must be for the defendant.” (Refused.) Defendant’s Ninth Prayer — “The jury are instructed that there is no legally sufficient evidence under the pleadings that the accident complained of in the amended declaration was the result of any act of negligence on the part of the defendant and their verdict must be for the defendant.” (Refused.) Defendant’s Tenth Prayer — “The defendant prays the Court to instruct the jury that the undisputed evidence in this case shows that the husband of the equitable plaintiff, the driver of the automobile, mentioned in the evidence, directly contributed to the happening of the accident complained of in this ease, by his want of ordinary care and prudence and the verdict must be for the defendant, the Director-General of Railroads.” (Refused.) ⁵⁰² Defendant’s Eleventh Prayer — “The Court instructs the jury that the train mentioned, in the evidence, operated by the defendant, had the right of way at Severn crossing on the afternoon of May 25, 1918; that it was the duty of the driver of the automobile mentioned in the evidence as he approached the crossing, not to rely exclusively upon the operation of the gates maintained at the crossing by the defendant, but to stop-; look and listen for the approach of trains on the railroad tracks operated by'the-defendant, before attempting to' pass under the said gates, and if the jury shall find from the evidence that the said driver of said automobile did not as he approached said crossing- at Severn on the afternoon of May 25, 1918, tire date of the accident, stop-, look and listen before attempting to pass under1 the gate upon the east side of the said crossing and if the jury shall be^lieve from evidence that if the driver had so stopped, looked and listened he would have seen or heard the defendant’s train in time, by the exercise of ordinary care, to avoid the accident, the plaintiff is not entitled to recover, and the - verdict must be for the defendant.” (Refused.) Defendant’s Twelfth Prayer — “The defendant prays the. Court to instruct the jury that it is the duty of a driver of an automobile, when approaching from the east, the crossing mentioned in the evidence, up¡ to the time he reached the east gate at said crossing, to have his machine under control, to look and see whether the gate at the crossing is down or1 whether it is coming down for the approach of a train, to look and listen to ascertain whether a train is approaching and if the view is obstructed in any manner or if because of the sounding of the horn or because of any noise made by the machine, the driver is unable to -hear, he must sto-p>, look and listen to ascertain whether a train is approaching, and if the jury'shall find that the husband of the equitable plaintiff, the driver of the automobile, failed to observe these precautions and that such failure on his part was the direct and proximate cause of the accident, without which the accident would not have happened, the verdict of the jury must, be for the defendant.” (Refused.) ⁵⁰³ The testimony in tlio record shows that the crossing was a dangerous one, and that the view of one approaching it from the east, as the deceased was approaching, of trains coming from, the north, was obstructed by houses along the north side of the Severn road and by a fence and shrubbery about the railroad property and by the station buildings. One of the witnesses for the plaintiff, however, testified that if one stopped and looked carefully at a point, between the postoffic©