Gerlach v. Cumberland & Westernport Electric Railway Co.

⁶³⁹ Pattison, J., delivered the opinion of the Court. The appeal in this case is from a judgment for the defendant, the appellee, in ah action brought- against it by the appellant, to recover for personal injuries, sustained by him, resulting from a collision of an automobile truck driven by the appellant and an electric ear of the ¿ppellee, caused by the alleged negligence of the appellee in the operation of its car. The road of the appellee is constructed along the westward side of the public county road leading from Frostburg to Lonaconing, in Alleghany County, Maryland. The collision occurred near the town of Frostburg, at a point where the appellee’s road is crossed at right angles by Powell’s Lane, a public highway, running east and west.

At a point 525 feet northward from said crossing, there is a sharp turn in the county road and in the road of the appellee, but from that point southward toward Lonaconing, the track of the appellee’s road is practically straight to and beyond Powell’s Lane. On the west side of the track, between said turn and Powell’s Lane, are several dwelling houses located about thirty-five feet from the' center of the track. These houses prevent persons on Powell’s Lane, approaching the crossing from the west, from seeing the track at some points northward of the crossing, but when the front line of these houses is reached, their view of the track northward is unobstructed to a point beyond the turn a distance of 555 feet from the crossing. The truck driven by the appellant Gerlach was, owned by one Plummer.

It had just been repaired and Plummer had asked Gerlach to try it out and see how it, worked. Gerlach testified that he, with Plummer, who was seated beside him in the truck, went east on Powell’s Lane and when they got to a point twenty-nine feet from the center of the track, they stopped and he changed gears and “looked up and down the track and could see nothing.” Tie said that from that pbint to the place where the truck was struck by the car, the view ⁶⁴⁰ of the track northward was unobstructed; that a car coming down the track could have been seen by him at any point within that distance. After' first stopiping at a point twenty-nine feet from the track he proceeded up grade under low gear, at a speed of two miles per hour; that when he got at a point ten feet from the track, he again looked northward up the track, hut saw no car, and he. continued on his way and it was not until he got upon the track, his first wheels across the first rail, that he saw or heard any car approaching him. At that time the car was. 144 feet away and as he said, “I speeded up and tried to get across, hut it was too quick.

It hit me before I could get across.” Upon cross-examination Gerlach was asked: “Q. What did you do when you stopped at the point twenty-nine feet from the track? A. I looked down first. Q. Which way? A. Down the road, and then I looked up to the left.

I looked first to the right and then to the left, in them trees. Q. Did you liave a clear view of the street car tracks? A. Yes, sir. Q. You could see clear to the turn ?' A. Yes.

Q. Is it over 500 feet ? A. 525 feet, I believe it is, yes. Q. And yon had a clear and unobstructed view to your left in the direction this car was coming, a. distance of 525 feet? A. Yes, sir.

Q. Was there anything on the side of the car in which you were riding, which obstructed your view ? A. Ho, sir. Q. When you looked clown there those 525 feet, what did you see ? A. I did not see anything whatever.

Q. What did you do? A. I shifted the gears and started to come up1 the grade to the crossing. Q. In that 29 feet, what did you do ? A. I looked up and down a couple times.

Q. How far from the track were you. when you looked up> and down those couple times? A. It was within that twenty-nine feet. Q. About how far from the track? A. I guess it. was about ten feet.

Q. You looked to yo'ur left when you got within ten feet of the track ? A. Yes. Q. Did you see anything? A. Ho, sir.” The witness further testified that he had lived not far from the scene of the accident all his life, and had been driving a ⁶⁴¹ truck since 1915, and since that time had been using Powell’s Lane, and had often stopped at the crossing to permit the car to pass.

The evidence of Plummer, who was with Gerlach in the truck, was practically the same as that of Gerlach. He, when asked if there were any trees in front of the houses on the west side of the railroad, said there were, but these, he said, did not at all obstruct their view up the track as they approached the crossing. He further testified that the car when first seen was approaching them at a, speed of thirty-five miles an hour; that as it approached the crossing, no bell