Payne v. Healey

Pattison, J., delivered the opinion of the Court. The appeal in this case is from a judgment recovered by tbe appellee, Jacob M. A. Healey, against the appellant, John Barton Payne, Director General of Railroads', for personal injuries sustained by him, as well as for injury and damage to his automobile, caused by tbe alleged negligence of the employees of the defendant in the operation of the defendant’s train. The record discloses that, on January the 6th, 1920, at the hour of one in the morning, the plaintiff and Dr. Fiery, a dentist, who was at the plaintiff’s house in Hagerstown, upon a professional visit to a member of plaintiff’s family, started ⁸⁸ in plaintiff’s automobile for the doctor’s home. The plaintiff testified that, while going east on West Antietam Street, he approached the tracks of the Cumberland Valley Eailroad, which cross that street.

At that time, he says, a freight train was approaching from the north. It was, however, going so smoothly that he did not hear it, but as soon as he saw it, he put .on his brakes and stopped his automobile. The train was on the west track, the one nearest to the plaintiff, and although the automobile was stopped before it reached the track, it nevertheless. was so near to it that the engine “picked” it up, and carried it down the track for more than three hundred feet to tlie point where the semaphore stood, on the west side of the railroad; while being carried down to the semaphore, the automobile moved smoothly; did not seem to jar very much, and he thought the right wheels were not off the ground; and it ran along as if it were on rails. While he was so carried along, he called as loud as he could to those on the engine to stop, and he heard someone else calling, “Stop, you have picked up an automobile.” Wbeu he heard the man calling, he was down the track half way from the point of the collision to the semaphore and he jumped from the automobile just before the crash came; that he heard the air-brakes thrown on, and the train stopped in about a car’s length; it Was moving about the same rate of speed when the machine struck the semaphore as it was when it picked him up.

The automobile was a Packard about eighteen feet long and a very high one, and, while being carried down the track, it was' alongside of the engine, the front part at the cowcatcher. The top of the car was up and tlie back curtains were up, but the other curtains were not on at all. The car was totally wrecked except the motor, and the plaintiff was personally injured. Upon cross-examination, the plaintiff stated that he was running about ten or twelve miles an hour down Antietam Street; and as soon as he saw the engine he put on his brakes and stopped; he could not tell how far he was away from the ⁸⁹ track; whether ten, twenty, or thirty feet; he knew nothing about feet; and the defendant’s, counsel was unable to have him. state more definitely the distance he was from the track when he first saw the engine; he stated that he had a klaxon horn on the car, hut he did not blow it while being carried down the track by the engine.

The witness further stated that he thought the train at the time of the collision was going at the rate of twenty miles an hour, but in this, as conceded by bis counsel, lie over-estimated its speed, as. it was moving only five or six miles an hour. D. J. Minnichs, an employee of the Cumberland Valley Railroad Company, testified that at the time of the collision he was “at the watch-box,” which is located on the south side of Antietam Street and a short distance west of the west track of the railroad, and saw the collision, but did not have time to signal before the locomotive struck the automobile; that immediately after it happened, he called out; he did not recall what he said, and then swung his lantern; that he called to the engine-man who was in the; cab of the engine; hut did not know that he saw him. The witness was at the time at the watch-box and the engine was “right by him.” He gave the stop signal with the lantern, but the engine was by him, as he thought, west of Antietam Street, the watch-box being several feet west of the street, that is, it is off the street but right by the pavement; that when he said west, he was speaking in railroad terms, what they called west, which is in fact south. He further testified that he thought he heard somebody call out when the ear was struck; that as the automobile was about to cross the track, it veered to the right; it was close to the pavement and went over the edge of the pavement; and after the collision the automobile was alongside of the locomotive and facing in the same direction. “The engine part of the automobile was alongside; on the pilot of the locomotive, on the right-hand side.” The wheels of the automobile seemed to1 be on the ground.

The witness, was- a brakesman and bad been one for four years and was able to ⁹⁰ judge of the speed of trains; the train was going' about five or six miles an hour at the time of the collision, and when it stopped it was just past the semaphore; a little over the length of the engine and tender; that he did not hear anyone call out after the locomotive passed him; but heard someone when the automobile was first hit. After that he did not hear anyone calling. Hpon cross-examination, the witness testified the first thing he noticed with reference to the accident was when the automobile came up Antietam Street, real close to him, and he heai'd the brakes which were then applied; the engine was about half way over Antietam Street crossing and this automobile ran out by the watch-box and on the crossing like; the automobile was near the crossing when he first saw it on the rigjitrhand side; he was a little off the street when he was struck, a little to the right of the street, not the whole automobile, but the right side of it would have taken in a little more than the street; the automobile was struck by the pilot of the engine and carried down the track by the engine on the pilot, that he did not notice it running on its own wheels. W. G. Pídete, fireman upon the engine that collided with plaintiff’s automobile, testified that he was in the cab' of the engine on the left side, and with him on the engine were L. S. Feagan, the engineer,'and T. F. Price; the conductor; the engineer was on the right side, the same side as the automobile, and the conductor on the left side; the train was running five or six miles an hour as it crossed Antietam Street, and the speed was about the same from that point down to the semaphore; that he remembered the emergency brakes being thrown on; it was near the semaphore; the train stopped in about forty feet after the emergency brakes were thrown.

T. F. Price, the conductor, testified that he heard the application of the air brakes, and that the car stopped within about forty feet thereafter, and the train was going about four to six miles an hour. ⁹¹ John Dennis, who was employed by the Cumberland Valley Railroad Company as car inspector, testified tbat, at the time of the collision, he was in the inspector’s building, which is about forty or fifty feet west of the main track and about the same distance from Antielam-Street; that he was looking out and saw the train and automobile strike; tbat he immediately went out and gave the engineer a stop signal with the lantern and hollered: “You hit a car, you have a car1 hanging on you.” He was unable to say whether the engineer was looking and could see the signal. When he signalled, the engine had passed him about the distance of the length of an engine and a half; that he hollered loud enough that he should think the man would hear him, but (for) the noise of the train; that he did not know whether he could hear him or not; the train was making the usual noise that a train makes at- that speed; the engine had gotten hold of the automobile right on the pilot between the front and rear of the automobile; the automobile1 was right between the cylinder and the pilot; it was a clear cold night, the moon was shining; after he gave the signal, he followed the train down towards the semaphore; he was going about the same rate of speed as the train, he walked along at a, pretty fast canter, was not running exactly; that after the air-brakes were thrown on, it went between twenty-five and forty feet. I "pon cross-examination, he stated that the automobile was between the watch-box and the railroad track when the collision occurred; that he saw them, both coming; the engine was coming and the automobile came up at the same time; the automobile was something like ten feet from the track when he first saw it; one wheel went over the pavement. The automobile “did not go over the rails, it was hooked on the side of the engine.” V. j\T. Jenkins, who was in the inspector’s shanty, the door of which was at the time open, heard Dennis call out, “You have hit an automobile.” He called very loud. ⁹² The plaintiff, when recalled as a witness, stated that the electric street light on Antietam Street, which was shown by the evidence to have been located fourteen feet west from the near rail, was right over the rear of his car when he stopped.

He could see the light around him. Gr. A. Boyer, who was also in the car inspector’s shanty, at the time of the collision, testified that he heard Dennis cry out, “There the train has hit an automobile,” and he called to JVIinnichs to give the signal to stop the train. “Dennis hollered as loud as he could,” he heard him plain; at the time he hollered the engine was right at the watch-box. Both Dennis and JVIinnichs called to them on the engine.

Upon cross-examination the witness stated that Dennis was on the inside when he first called and the door was shut; that he grabbed his lantern, went out and witness followed right behind him; the engine was then about half way down to the semaphore and the automobile was hanging on the cross-sill of the engine. It was hanging on steam cylinder. Harold Gr. Yan Ripper, a civil engineer, employed by the Pennsylvania Railroad Company, who had made a plat of the scene of the accident, testified that “there are five tracks across Antietam Street; that the nearest side of the watch-box is 9 feet, 11 inches from the nearest rail and the watch-box is 8 feet, 6 inches from the curb line of the pavement,” that “the semaphore is 340 (feet) from the center of Antietam Street,” and to that point the grade of the railroad was ascending for the distance of 100 feet “and from thereon the grade dips down.” He further testified that he made tests to see how far down the trade he could see when standing' in the center of Antietam Street, and found that by standing 60 feet back from the near rail he could see down the track 44 feet; standing 40 feet back from the near rail, 16 feet; standing 20 feet back from the near rail, 310 feet, and 13 feet back from the near rail, 460 feet; that the pole from which the electric arc light hung is 14 feet west from the near rail, and the electric light about the same distance therefrom. ⁹³ Tlio evidence of the defendant shows that, at the time of the accident, there was an easthonnd freight train on the siding next to the main track three hundred or four hundred feet south of Antietam Street, and a,t the same time there was an engine, which they called the helper or pusher engine, on the main track, the same track on which the engine and train that collided with the automobile was running.

This, engine had hacked south through the town ahead of the last named engine, and was, at the time of the collision of the train arid the automobile, about the same distance south of Antietam Street as the easthonnd engine on the siding. Both of these engines were facing north, with their headlights, located at the regular position on the front end at the top of the boiler, and were throwing the rays of their lights upon the southbound train, which collided with the plaintiff’s automobile. The defendant offered evidence, tending to show that, with these conditions existing, the engineer1 on the southbound engine could not have seen, in crossing Antietam Street, an automobile fastened on the front of his engine, until he got within a short distance of the semaphore. But, upon cross^ examination, one of his witnesses stated that “the headlights of the engines down the track would not prevent the engineer from seeing an automobile about to go on the track, as ho was approaching Antietam Street, if the automobile was right under the arc light.” Leo Feagan, the engineer on the engine of the southbound train Ho. 1760, the one that collided with the plaintiff’s, automobile, testified that, when he crossed Antietam.

Street, he was going four to five miles an hour; the headlight was burning and the conductor was ringing the bell; the fireman and conductor were on the opposite side of the engine from him and “he was on the right-hand box seat watching ahead”; that he did not see Mr. Healey’s automobile as ho approached, or as he crossed Antietam; that the first he knew that there was any trouble was when he was about eight feet of the semaphore, when he thought he heard a noise behind him, and as ⁹⁴ he turned his head around, he saw something at the side, that is at the front of his engine; that he threw on the emergency brake and stopped in about thirty or forty feet; that he did all he could to stop the train after he saw the automobile or that object on the front of the engine; that he was following a pusher engine through the town; that, as he crossed Antietam Street, the pusher was about five or six hundred feet ahead of him; that there was an eastbound train standing on the siding; that the headlights on both engines