Gosnell v. B. O.R.R. Co.

Joan Knight Gosnell entered suit in the Baltimore City Court against the Baltimore Ohio Railroad Company for injuries sustained in a grade crossing accident on February 25, 1946. The defendant, appellee, filed a demurrer prayer but the trial judge allowed the case to go to the jury. The jury was unable to agree. The trial judge later entered a judgment non obstante veredicto for the defendant for costs.

From that judgment the appellant appeals. On the demurrer prayer the evidence presented must be set out in some detail in a manner most favorable to the appellant. On February 25th, 1946, at about 6:40 p.m . the appellant, Joan Knight Gosnell, the weather being clear, the street dry, and it being dark at the time, was riding in an automobile traveling in a southerly direction, driven by her husband, Walter Gosnell, on Potee Street in the area known as Brooklyn in Baltimore City. Potee Street is a dual boulevard with four lanes for traffic and is connected on the north end with Hanover Street and at its south end with the Ritchie Highway.

It is generally used as a cut-off to avoid traffic through the business district of Brooklyn. This was the first time that the appellant and her husband had ever driven on this street and they did not know that there was a railroad grade crossing anywhere in the vicinity. A single track of the appellee crosses Potee Street approximately 1,000 feet south of Hanover Street at almost a right angle. It was stipulated and agreed that the base of the railroad crossing sign is 20 feet north of the north rail and the crossing sign on the south side is the same distance.

The watch box located east of Potee Street and south of the railroad is 10 feet south of the south rail. Potee Street is a boulevard. No flashing lights, bells, or safety gates were maintained by the appellee, at this crossing. The plaintiff offered to prove "that at Hanover Street, one block to the east of Potee Street, the same railroad tracks cross and that at the Hanover Street crossing, the Baltimore *Page 680 and Ohio Railroad at the time of the accident and for a long time prior thereto, had installed and was maintaining in operation safety gates." This proffer was refused by the trial judge.

Potee Street has an over-all width of 54 feet. The opposing lanes of traffic are separated by a concrete plot six feet in width and about six inches high, which therefore affords a south lane for traffic 24 feet wide and a north lane for traffic of the same width. The appellant testified that her husband was driving the car rather slowly at a rate of approximately 15 or 20 miles an hour, in a southerly direction in the south lane and on the right hand side of that lane. They were riding home from work and she had never been on that road before.

The usual route was over another road. She did not know there was a grade crossing over Potee Street or anywhere ahead of her. Her husband had full command of the car at that time. She saw no flashing lights, safety gates, or sign ahead of her.

She did not see any one or any warning device. They were proceeding in the slow driving traffic lane on the right. She had been looking straight ahead and suddenly turned to the right and saw almost on top of her a "big black engine" without a headlight. She cried out to her husband: "Oh, my God, oh, Walter, look." Her eyes were still on the train.

She felt her husband turning the automobile in the same direction that the train was running but they were trapped and did not have a chance. She heard no whistle blown or bells rung. Both windows in the automobile were lowered. The engine was about 50 feet from her and practically right on top of her when she first saw it.

She was not expecting the train. She was more or less on the alert because she had driven an automobile prior to the accident and is always on the alert when she rides in a car driven by someone else. The train crashed into the right side of the automobile where she was sitting, and she felt excruciating pain and was knocked unconscious. *Page 681 Her husband, Walter Gosnell, testified that he is a rural mail carrier, and that he had never been over Potee Street before. He turned to the right from Hanover Street into Potee Street at the traffic light.

He shifted into high gear and was going about 15 miles per hour. The time was about 6:40 p.m . The weather was clear, the road dry, and it was dark. He did not know there was a grade crossing on Potee Street.

This was the first time he had been over that street. As far as he can recall, his headlights were on low beam. He noticed some traffic coming towards him in the north lane. He was on the extreme right of the southbound lane near the curb.

He did not see any traffic going in the same direction that he was traveling and he does not remember seeing any cars in front of him. He does not think any cars passed him after he made the turn into Potee Street. The lights on his car shed a rather broad beam. He saw no flashing red lights, safety gates, warning lights of any kind, no watchman, nor any danger signals.

He heard no whistle blown nor bells rung. The first notice he had of the locomotive was when his wife called to him. He saw no lights on the locomotive. He looked around and then "the black thing" was about 10 feet from him.

He cut his wheels to the left and the locomotive struck the automobile about at the right front wheel. Before the accident he was looking straight ahead. After the accident the car was facing east, the same direction the train was going. He was knocked unconscious.

He said he did not tell the conductor that he had seen the crossing watchman waving a red light, but could not stop. On behalf of the defendant, Eugene A. Wright, the fireman on the locomotive, testified that he was riding on the left side of the engine as it approached the crossing. The engine was equipped with an automatic bell. The bell was turned on about the time the signal whistle started as they approached the crossing and continued ringing until the locomotive stopped and it was turned off.

The engine was moving with about 50 cars of coal *Page 682 at the rate of 10 or 15 miles an hour. As the locomotive approached Potee Street a car ahead went over the crossing just in front of the locomotive. The Gosnell car then was an estimated distance of 150 to 200 feet from the crossing when the locomotive was about 75 feet from Potee Street. The appellant's car, however, did not stop.

At the time of the accident the emergency brake was thrown on and the locomotive stopped in the distance of two or three car lengths. The head light was burning at the time of the accident. Before the accident he saw the watchman come out of the box on the right hand side of the tracks and on the opposite side from him. He did not see the watchman on the north side of the tracks.

Charles M. Miller, the engineer on the locomotive, stated that he lighted the head light on the engine before leaving Cliffords, which is about one and one fourth miles from the scene of the accident. The engine was a large mountain-type steam locomotive, over 89 feet in length, with a height of about 13 feet and weighed with the tender 160 tons. After leaving Cliffords he blew the crossing signal, two long, one short and one long blast. After passing the Patapsco River Bridge, approaching Potee Street, he blew the crossing signal again.

He then blew a signal for the operator at Hanover Street, four short blasts of the whistle and after receiving the signal from him to go ahead, he answered with two short blasts of the whistle. As he approached Potee Street he noticed the crossing watchman waving his red lamp to stop traffic, which on the northbound lane had stopped probably 100 feet or more before he reached the crossing. He said that the watchman was waving the lantern about in the middle of Potee Street on the same side he was on. He did not know anything of the accident until the fireman called him.

He saw the watchman start to run back from the crossing about the time the fireman called to him that he had struck an automobile. *Page 683 John H. Wilson, the telegraph operator for the defendant stationed at Hanover Street, testified that he received a call from the conductor of the train at Cliffords, and he told him to come on. He saw the head lights on the train as it was leaving Cliffords Woods. The engineer blew the regular signal for Potee Street, two long blasts, one short and one long, and when the engineer gave the four longs for Hanover Street he let the crossing gates down and gave the engineer the green signal. Raymond J. Crabill, the conductor of the freight train, testified that they arrived at Cliffords about 6:10 p.m., called the operator at Hanover Street on the telephone and left soon after that.

He was riding on the engine. The headlight was burning, the automatic bell was ringing and the whistle blown at different intervals from Cliffords and as they passed Potee Street. He did not see the accident. The first he knew of it was when the fireman called.

He said after the accident, Mr. Gosnell told him that he saw the watchman waving a lantern but could not stop. Joseph W. Harris, the brakeman on the train, said he did not see the accident, but the whistle was blowing, the headlight was burning, and the bell was ringing as they approached Potee Street. Alliston Carroll, a witness produced by the defendant, at the time of the accident, was a chauffeur on a tank truck. He said he was coming from Curtis Bay going north on Potee Street.

As he approached the railroad crossing he saw a crossing watchman there standing on the concrete base in the middle of Potee Street flagging traffic with a lighted lantern. He flagged northbound traffic first and then he started flagging southbound traffic. The watchman swung his lantern for southbound traffic to stop. He stopped his truck in response to the flagging on the inside lane "coming north, right next to the curb." He saw a taxicab go across the track.

Another car followed it. He then saw the car which Mr. Gosnell was driving approaching and he thought the *Page 684 train was going to hit it. The watchman was flagging southbound traffic before the taxicab went across. The watchman did not leave the place where he was flagging southbound traffic until Mr. Gosnell was within 50 feet of him and between 35 and 40 feet from the crossing.

Mr. Gosnell's car was the third car to go across. The headlight was burning on the locomotive and he first saw the headlight about 600 or 700 feet up the road. He heard the whistle of the locomotive blown as it approached the crossing. When the train hit the car he heard the brakes applied and the train stopped seven or eight car lengths ahead.

The engine was then across Hanover Street. Fred Carter testified for the defendant that he had been the watchman on the crossing only a day or so before the accident happened. He was the substitute for the regular crossing watchman. He said he was equipped with two red lanterns and one white one.

The lanterns were lighted and were bright. He saw the train approaching from the direction of Cliffords. He was sitting in the watchbox, the headlights of the engine were on. When he saw it coming he walked outside.

Before he got his lanterns he waited until it got a little closer. He said, "Well, I was sitting in my watchbox, I saw the train coming, the headlight, and when I saw it coming, I walked outside. Before I got my lanterns, I waited until it got a little bit closer. When it got the average of the time you are supposed to start to give it a safety signal, I go back, picks up my two red lanterns, and white lantern, I stop my northbound traffic and hang a red lantern aside the road there and so I walks to the center and start waving the southbound lane, it's right in the middle concrete there, it's raised concrete, so after I start waving my lanterns, there was a taxi driver and another car went across and as the train, both, and the accident car was coming up, I saw them about the same distance and I knew they were going to hit so I turned and run beside the oil tanker that I had already stopped, Amoco oil tanker, and after I heard it hit I *Page 685 turned back and run back there to the coal cars, jumped up between the coal cars, saw a woman laying out there on the hard surface." He first saw the Gosnell car when it was about 50 feet from him and while he was in the center of Potee Street.

He said the reason that he left that place was: "I left for my own protection, I didn't want to get hit, I didn't know if any part of the cars would fly over there and hit me or not, and of course, I turned my back on it. I have seen accidents before, and I didn't like to see no accident then." He said the first thing he did when he came out of the watchman's box was to get the two lanterns. He did not wave the lanterns immediately but judged the distance of the train and the volume of traffic. The traffic was "going pretty fast on Potee Street.

There was quite a bit of traffic," and he let some go by. The train was coming closer all the time. He flagged down the oil tanker in the northbound lane