Jenkins v. Baltimore & Ohio R. Co.

Page, J., delivered the opinion of the Court. At the close of the appellant’s case, the Court granted an instruction taking the case from the jury, and directing a verdict for the defendant. The position of the appellee is thus stated in its brief. “There is no question raised by this case as to whether or not the stop, look and listen rule should apply, or to what extent an open gate, is an implied assurance that the track may be safely crossed ; or any other of the points passed on in the Stumpf case; but the sole question is, whether or not the plaintiff is barred by his own contributory ⁴⁰³ negligence.” “Admitting, as we must,” the counsel of the appellee in his brief proceeds to state, “the negligence of the railroad company in not having the gates closed at the time of the accident, and its negligence in every other particular, as made out by the plaintiff’s case, yet, the plaintiff’s own negligence would defeat the right to recover and warrant the lower Court in taking the case from the jury.” There is no doubt that this position is correct, if the evidence makes out such a clear case of contributory negligence as that no reasonable person can differ about it, the case should have been taken from the jury. Pennsylvania R. R. Co. v. McGirr, 61 Md. 121 .

But if the evidence of negligence on the part of the appellant is contradictory, or is of such a character that reasonable persons may differ as to its amounting to proof of the negligence of the appellant and that such negligence contributed to the accident, then a case would be made out for the jury; and it would be error to withdraw it from their consideration. Lake Roland Co. v. McKewen, 80 Md. 393 ; Cooke v. Balto. Traction Co., 80 Md. 551 ; Baker v. Md. Coal Co., 84 Md. 19 . Now assuming this to be the law applicable to cases of this kind, the question is, is the conduct of the appellant relied on as sufficient in law to constitute contributory negligence on his part clearly proved by clear and uncontroverted evidence (Maugans case, 61 Md. 60 ), and if so, does it present any “prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ.” “Where the nature and attributes of the act relied on to show negligence contributing to the injury can only be correctly determined by considering all the attending circumstances ot the transaction, it falls within the province of the jury to pass upon and characterize it, it is not for the Court to determine its quality as matter of law.” Cooke's case, 80 Md. 558 .

Turning now to the evidence, the record shows that the plaintiff, a laborer, “after sundown,” left his home and came to the corner of Henrietta street and Ohio avenue, and attempted to cross over the railroad tracks at that point. This is a grade crossing and a public thoroughfare. The company ⁴⁰⁴ has maintained there for some years safety gates, pursuant to an Act of Assembly (City Charter, sec. 791). These were open.

There are six pairs of tracks on Ohio avenue. If no cars are on the track, one crossing on Henrietta street, would have an unobstructed view for four squares—and at night, a moving lantern could be seen for (that distance. There is a watch-box between the tracks, but on the night of the accident no watchman was there. There are two electric lights at the crossing, one on each side of the tracks.

Twenty or more feet and along the tracks from the crossing, there is an elevator building, the shadow of which by reason of the location of the electric light, is cast over the tracks. There was conflicting testimony as how clearly objects within the shadow could be seen. The plaintiff testified “it was awful dark at this house, I could riot see anything; ” Grififiss—the “elevator shades the tracks about 30 or 35 feet below the crossing, but a train of cars could