Elgin v. Baltimore & Ohio Railroad

McSherry, J., delivered the opinion of the Court. The declaration in this case alleges that the Baltimore and Ohio Railroad Company agreed with the County Commissioners of Washington County to open and keep in repair a public highway alongside of the company's road-bed, and to construct and maintain suitable guards and barriers between that highway and the railroad tracks, at points where the surface of the former might he above the plane of the latter: That the company neglected this obligation to construct guards and barriers, and that the horse of the appellant, whilst being driven along this highway by the appellant, was frightened by an approaching train, and backed the vehicle over the side of the road where the guards and harriers ought to have been; and that the appellant sustained serious injuries in consequence. The duty thus imputed to the railroad company is one arising solely upon contract, and not one imposed by any statute or by the common law. This is made certain beyond the possibility of question by the evidence, to which allusion will be made in a moment.

To the contract then, and to it only, resort must be had in ascertaining the extent of the duty whose alleged breach is the gravamen of this action. Obviously, therefore, the very first step to be taken towards establishing a liability is to prove the existence of such an obligation. It was shown by the evidence, that just east of Sandy Hook in Washington County, the public county road leading from Weverton crossed over the railroad from the north to the south side; that it then ran parallel with and close to the south track, until the west end of Sandy Hook was reached, when the road crossed the ⁶⁴ tracks to the north, and continued on that side: That these two crossings were dangerous, and caused much delay to persons using the highway, as well as inconvenience to the company: That, in order to obviate all this, a number of citizens of Washington County petitioned the County Commissioners to open a new road on the bed of an old private way on the north side of the tracks, beginning east of Sandy Hook, where the old road crossed to the south, and running wholly on the north side to the point where the old road recrossed the. tracks west of Sandy Hook. The appellant, for the purpose of showing an agreement on the part of the company to put up and maintain" the guards and barriers referred to in the declaration, then proposed to offer in evidence the proceedings had before the County Commissioners respecting the opening of the new road.

These proceedings contain' an agreement on the part of the company, and it is that agreement which, it is claimed, fixes the company's liability. This agreement recites, in substance, that the company, in the prosecution of its business, has been compelled to obstruct the public road where it crosses the tracks as indicated; that it has been proposed to change the road so that it will run on the north side of the tracks, “and not cross the same,” whereby the company will be relieved from liability to indictment for obstructing the highway; and then provides that, “in consideration of which the said company agrees and promises that it will” pay the damages awarded by the examiners for the opening of the road; that it will make the altered road, and “ that it will put up and maintain at its own expense a fence, wall or barrier where the proposed road is higher than the railroad tracks.” The appellee objected to this evidence, and the Circuit Court sustained the objection, and to this ruling the third and fourth exceptions were taken. It is perfectly evident from the agreement that the com ⁶⁵ pany was anxious to be freed from the inconvenience to which it was and had been subjected by these two crossings, and that the people rvho used the highway were equally anxious to avoid the dangers incident fo driving over the railroad tracks at these points. The railroad company accordingly agreed to make the new road safe if the inconveniences which it encountered were done away with by the closing of the old road.

Its obligation was therefore conditional, and the condition prescribed was the alteration; that is, the entire closing of the old road. Had the old road been closed, the duty of the company to open and make safe the new road,