Klein v. United Railways & Electric Co.

Offutt, J., delivered the opinion of the Court. This case grows out of a' collision between an automobile in which Mrs. Rose Klein, the appellant, was a passenger, and a train owned and operated by the United Railways and Electric Company, the appellee. The accident occurred at about four o’clock in the afternoon of July 5th, 1925, at the intersection of the North Point Road with appellee’s single track railway, about one and a half miles from Bay Shore Park, in Baltimore County. The railway tracks at the crossing are of “tram” construction, similar to that used in the ordinary city street, are flush with the road, and the road itself is level there.

On either side of the crossing the tracks are of “T” rail construction and for a distance run through a “cut” several feet below the surface of the adjacent land. At the time of the accident, Mrs. Klein was a passenger in a Studebaker sedan automobile owned and driven by her brother-in-law, Harry A. Goodman, which was proceeding southerly along the North Point Road towards Bay Shore Park. As the car approached the crossing, Mr. Goodman, the driver, was on the left front seat, Mr. George Klein, appellant’s husband, was on the right front seat, and with them was Mr. Goodman’s “little boy, Stanley.” Mrs. Klein was ⁴⁹⁵ seated in the middle of the rear seat, with Miss Lillian Goodman on her left, and Miss Anna Goodman on her right, and with them was a child two and a half years old. As the automobile approached the crossing, Goodman saw the train approaching from his left about three hundred feet away, but he continued his course and started over the tracks, but before he cleared them the train struck the automobile, dragged it for some distance, and overturned it.

As a result of the collision, Mrs. Klein was seriously, painfully and permanently injured, and on October 7th, 1925, she brought this action against the appellee in the Baltimore City Court to recover compensation for her injuries, on the theory that they were occasioned by its negligence. At the conclusion of the trial of the case the court directed a verdict for the defendant, and from the judgment thereon the plaintiff appealed. The only question submitted by tbo record is whether the court orred in that ruling, and in dealing with that question it becomes necessary to review and value so much of the evidence as tends to support the plaintiff’s claim. The crossing is, as we have stated, formed by the intersection of the North Point Road, running at that point approximately north and south, and the tracks of the appellee running east and west.

So far as the record discloses, it is in the open country, and the construction of the railway on either side of it appears to bo adapted to the operation of railway cars at high speeds. Eor a distance of something over two hundred feet north from the railway tracks, the bushes on the east side of the road are cut away, so that one approaching the crossing along the North Point Road from the north, when two hundred feet from the crossing, had an unobstructed view of a car coming west for four hundred feet east of the crossing, and as he got nearer the track his view lengthened, until at a distance of fifty feet from the track he could see a car approaching from his left for six hundred feet. A plat filed by agreement in this court indicates that adjacent and east of the crossing is a landing for passengers, on the north side of the tracks, and some distance farther ⁴⁹⁶ to the east is a whistling post. The same plat indicates that the highway is about sixteen feet wide, and that four warning signs indicating danger and a railway crossing are located north of the crossing on the west side of the road, at irregular intervals, the most distant being five hundred feet from the tracks.

The evidence is conflicting, but resolving all conflict in favor of the appellant, and giving her the benefit of all inferences which could naturally and legitimately be drawn from it, it nevertheless conclusively shows that the accident must have happened in one of two ways, and the question before us is whether in either case the plaintiff was entitled to recover. The appellant’s contention is, and there is evidence to support it, that the street car approached the crossing at a “terrific” rate of speed, that, as it approached, a “procession” or “parade” of automobiles also approached it, proceeding slowly and with a comparatively short space between the cars, that the railway cars were accustomed to stop at the crossing to take on or discharge passengers, that the North Point Road at that crossing is a heavily travelled state road, and that the “procession” of automobiles was steadily, in full view of the motorman operating defendant’s car, crossing in front of it, with no break or “opening,” and that under such circumstances Goodman, who was operating the automobile in which appellant was a passenger, was justified in assuming that the motorman would reduce the speed of his car or stop, so as to permit Goodman to cross the tracks in safety. The appellee’s contention, on the other hand, is that its car approached the crossing at a moderate rate of speed, that it gave sufficient warning of its approach, and that, as it approached, the motorman saw the ‘“procession” approaching the crossing, and reduced the speed of his car, but, having given warning of his approach, he assumed that persons operating the automobiles would not leave a place of safety and place themselves in front of an oncoming railway train, ⁴⁹⁷ and increased his speed as he approached the crossing, and that he did not realize, until too late to avoid the collision, that Goodman intended to drive over the tracks in front of the car, and that no negligence should be attributed to the motorman for acting on that presumption. The conflict in the evidence related mainly to the speed of the car as it approached the crossing, and as to whether the motorman, after first reducing its speed, increased it again just before he reached the crossing.

Appellant also suggests that there was testimony that no warning was given, but an analysis of the evidence fails to support that contention, to which we will refer later. Mrs. Klein, the appellant, testified that when the automobile in which she was riding was one hundred and fifty feet from the crossing, she looked for approaching “street cars,” but saw none, and did not look again until she heard “the whistle and saw the car at the same time,” when the automobile was on the tracks; that the “motorman did not blow his whistle until he was almost on top of the machine”; that she did not “hear” any whistle until he was on top of the machine; that the car was coming at a terrific speed, and that the motorman looked as “if he wanted to slow down, but he was going so fast he could not slow down”; that there was quite a string of cars approaching the crossing, and the one in front of the Goodman automobile was about ten feet from it, and it “got across all right,” that “there are no houses or fences or buildings nor trees or woods, that is open country.” Harry A. Goodman, who was driving at the time of the accident, testified that he and his family were bound for Bay Shore Park, and that his automobile was part of a parade or procession of automobiles going south on the North Point Road; that when he was about two or three hundred feet from the crossing, he looked both ways and saw and heard nothing, that when he got about fifty feet from the tracks he looked to his left, and saw the railway car approaching, and at the same time he heard the whistle; that the car was ⁴⁹⁸ then about three hundred feet away, evidently going at a terrific speed. He further testified that, when he was fifty feet away from the track, the same procession of automobiles was in front of him leisurely going across the railroad track; that he could only watch the automobile in front of him; that he was about two or three automobile lengths from the tracks when the street car was three hundred feet ahead; that while he was looking and saw this car about three hundred feet away, the automobiles in front of him were continuing across, and he was following leisurely along, and he figured that the motorman of the car, seeing that procession, would probably come to a dead stop or slow down enough to avoid anything; that the line of cars did not come to a stop, but kept on going, even after the car was approaching about three hundred feet; that there was nothing to prevent the motorman in the car from seeing these cars going across there, that the last time he looked was about fifty feet from the track; that before he arrived at the track — that before he got on the track — he looked again; that just within a few feet of the track he always looked, and then when he got on the track, that instant he was struck, “and the car bore down on us, he evidently was going at a terrific speed”; that when he looked before he got on the track the distance of the car, he guessed, had been one hundred and fifty feet; that the automobile which had been in front of him was just about leaving the track; and the street car was about one hundred and fifty feet; * * * that it looked to him when he was on the track, the distance that the car came from, the distance it was at that particular moment, he guessed that was about one hundred and fifty feet, and he may have tried to put on a little gas to get across quicker, and evidently he did, because the car struck them a little beyond the rear door, just about at the rear wheel on the left side; as he was going across the track his object was to get across as soon as he possibly could; as soon as he saw the street car there was nothing else he could do but that. He said that when he heard the whistle and saw the car he could not ⁴⁹⁹ judge its speed, because he had to watch the “car ahead of him”; that he thought, when the motorman saw “the procession going across there,” he would stop or slow down to protect “anybody going across”; that in all his “previous experience going across that crossing” the street car has always stopped before it passed that crossing, or slackened down “sufficient like if it was coming to a stop.” When asked, “You thought because the car ahead of you was getting over safely that you had a right to follow it and get over safely”; he said, “The way the situation appeared at that time, I thought I could make it safely.” He further said that he approached the tracks at from ten to fifteen miles an hour, and that at that speed he could stop his automobile in a car length easily.

Anna and Lillian Goodman both testified, but recalled nothing that is material about the accident. George Klein, who was on the front seat with Goodman, in part testified: “We were on our way to Bay Shore, and there were several cars in front of us. In fact, there was a steady stream. Just before we approached this crossing, I should judge around four or five hundred feet, to my best judgment of distance, we noticed or saw the train, the car, coming down the track, and we kept right ahead, in fact, there were several cars in front of us, and just about the time the front wheels went over the railroad track, that is about the last I can remember”; that before they got on the track, it seemed they had plenty of time to cross it; just how many feet he didn’t know — that he is not a very good judge of distance.

That right before going on the track, it looked like it was a pretty good distance away; it looked as if they had plenty of time to cross the track, the automobile in front of him he imagined was about ten or twelve feet in front of them — that this car that was in front of them passed right over the track; that there had been no stop at all before they got to the car track; that there were automobiles going both directions, at the time they approached the car track. He further said that it “is a pretty open country around there ⁵⁰⁰ and that it was coming at a pretty good rate of speed, pretty fast,” that he did not remember whether he “heard the whistle or not.” Albert Oollison, who lived about two hundred and fifty feet from the crossing, and was standing on his porch when the accident happened, said that at the time there was a continuous line of traffic, “it was so thick you could not cross the road,” automobiles going to and coming from Bay Shore, that he “knew the crossing”; that “it is a stop' for the street railway to take on passengers and discharge passengers”; that he has seen it stop' there, that he got on there this morning himself; that “if no one isi to get on or off the car it goes along. It is a pretty well used road”; that he heard the whistle when the railway car was three hundred feet from the crossing, that he heard it before he- saw the car, that he could not see whether the railway car was going fast or slow. He does not appear to have actually seen the accident, but heard the crash.

He was watching the traffic, “watching the string of machines to see if they were going to make an opening for the street car h> go through, which as a rule they generally do.” Philip Foxman, Goodman’s brother-in-law, was driving an automobile about fifty or seventy-five feet behind the Goodman car. He testified that he saw the “street car” about three hundred feet from the crossing when he was seventy-five feet from it, and that when the Goodman car was hit, he, Foxman, stopped twenty-five or thirty feet from the track; that the automobiles were going at a speed of from fifteen to twenty miles an hour; that before the accident there was no “stop in the automobiles, that they just kept going,” and that tbe street car was approaching at a rapid rate of speed. William E. Hughes, wlm also lived on the North Point Hoad, about two hundred and sixty feet further away from the crossing than Oollison, testified that he was familiar with the crossing, that cars always stop' at the crossing, that just before the accident he had been on his front porch, and had noted that the traffic was very heavy, moving at a moderate rate of speed, and he saw the street car when it was about ⁵⁰¹ one hundred or one hundred and fifty feet from the crossing, and at that time it was slowing down, and he “went in”; that before it slowed down “it w*as going at a speed of about thirty-five” ; that the automobiles continued to go across, to go ahead. Oil his cross-examination he said that some north bound machines had stopped at the crossing, that the whistle was blowing continuously from the time the car was five hundred feet from the crossing until it hit the automobile.

On behalf of the defendant, Fióla Shapiro testified that she was in an automobile going from Bay Shore to Baltimore, and that as it approached the