Pennsylvania R.R. Co. v. Breeden

⁹² Parke, J., delivered the opinion of the Court. This is an appeal from the judgment recovered by William Breeden, appellee, in his own right and for the use of his employer, Fred C. Peet, and his employer’s insurance carrier, the State Accident Fund, against the Pennsylvania Railroad Company, appellant, for injuries received on October 24th, 1925, on a railroad crossing, in a collision between appellant’s engine and a motor truck in which Breeden was being transported by the servant of his employer. At the time of the accident Peet was engaged in the construction of a school building and two barns and a silo in the neighborhood of Riderwood, Baltimore County. He and his workmen lived in Baltimore and traveled south to their work along a public highway called Bellona Avenue to its intersection with Stevenson Lane, which crossed appellant’s railway tracks a short distance west of the intersection and led to the property upon which the barns and silo were being built, and was in the vicinity of the school house.

Eor the purpose of description, it is sufficiently accurate to say that Bellona Avenue and the railway tracks of the appellant run north and south, and that Stevenson Lane, intersecting both the railway tracks and Bellona Avenue, extends east and west. The railway crossing is west of Bellona Avenue, and is about sixteen feet wide, with planks on either side of the rails of the double tracks, and stone and dirt between, so as to make the surface of the crossing level with the top of the rails. The approach to the crossing from the east is by an ascending grade. The railway tracks curve slightly to the east to the north of the crossing ami slightly to the west to the south.

On the north of Stevenson Lane, and close to the traveled way, is the southern end of a railway siding from five to six hundred feet in length and lying east of the railway, and gradually converging until it unites with the easternmost or north bound track of the main line. Between Bellona Avenue and the railway there are no buildings on the north side of Stevenson Lane to interfere with the view of the track to the north. ⁹³ To the south of Stevenson Lane, and between Bellona Avenue and the railway, the view to the south is obstructed by gasoline tanks on the western edge of Bellona Avenue and then by a building, containing a post-office and store, until the line of its western wall is reached, but from that point to the railway, a distance of about twenty feet according to the plat, there is no other obstruction. In front of the building is a driveway, and, also, a county incandescent electric light on a pole forty feet east of the railway crossing. As the truck was traveling west from Bellona Avenue at the time of the accident and was struck by the engine on the western or south bound track, it is unnecessary to go further into the conditions south of the lane or west of the railway, except to note that a short distance below Stevenson Lane a siding left the west or southbound main track and extended northwestwardly across Stevenson Lane for a short distance to serve a coal yard north of the lane.

On the morning of the accident, which occurred at about half past seven, the view of the railway.to the north had been obstructed. Three or four freight box cars had been placed in the siding to the east of the railway, so that the nearest one to Stevenson Lane was five feet from the south end of the siding. In addition, a pile of lumber, twelve or fourteen feet square and twelve or fourteen feet high, was standing north of the lane, and about twelve or sixteen feet east of the freight cars. These two obstructions prevented any one traveling from Bellona Avenue along Stevenson Lane towards the crossing from seeing the approach of a south-bound train until the freight cars on the siding had been passed.

The measurements of the surveyor show that at its southern end this siding is eleven feet and eleven inches from the main track, and this distance slowly decreases until, at two hundred and sixty-three feet, the distance apart is seven feet and six inches. The surveyor estimated the total length of the siding to be from five to six hundred feet. The railway is in the open country, the crossing is sixty-eight feet from the west side of Bellona Avenue, and north of Stevenson Lane .and between the avenue and the railway tracks there are no ⁹⁴ obstructions, so, whatever may be the visibility of the tracks to the north of the junction of the main track and this siding, the physical conditions and these measurements establish that the main tracks were visible for at least a distance of five or six hundred feet from any point in Stevenson Lane between the most western rail of the main tracks and the prolongation of the plane of the sides of the freight cars that projected over the west rails of the siding. As the west rail of the southern end of the siding is eleven feet and eleven inches from the east rail of the north-bound main track, there was a distance of about eleven feet in which a pedestrian approaching the railway crossing from the east would have an unobstructed view to the north of both tracks for this minimum distance.

Since the gauge of the railway tracks is five feet nine inches on the crossing, and the distance between the main tracks is six feet nine inches, the pedestrian would have to go twelve feet and six inches further on the crossing before reaching the east rail of the south-bound track, and while traversing this distance he would have the same unobstructed view to the north of the tracks, so that, after passing the freight cars on the siding, a traveler on Stevenson Lane had a clear view of both tracks to the north of from five to six hundred feet for twenty-three feet and six inches before reaching the east rail of the south-bound track. There is no definite testimony as to how far back of the front of the truck the seat of the cab was placed, but the colored man who was sitting in the back of the truck testified that he was twelve feet away from the front of the truck, and, even if the cab be assumed to be as far back as eight feet, the driver of the truck could have stopped near to the north-bound track, but in a position of absolute safety, and there would have been an unobstructed view of the track to the north for at least five or six hundred feet. Peet and Breeden both testified it was necessary to drive the truck upon the north-bound track before you could see the full distance either way, and then, according to Peet, you could see the track for one hundred or one hundred and fifty yards, and Breeden estimated this distance at one hundred yards. Peet ⁹⁵ stated oil cross-examination that his statement of the distance was a guess, and there is nothing in the record to indicate that Breeden either had any better basis for his opinion or any qualification to give it weight.

But if their testimony be accepted as a fact instead of an inaccurate opinion, their conduct in attempting the crossing was thereby made the more culpable. On the morning of the accident Peet, with William Breeden, William F. Kates, George Diven, and Joseph Wilson, drove his Ford truck along Bellona Avenue and into Stevenson Jjane to a point beyond the electric light pole, and stopped from twenty to thirty feet from the north-bound railway track to let Peet and Diven get out, so that they could go back to Bellona Avenue and walk to the place where the school house was being built. Kates, who had been brought along for the purpose of driving the truck to Zell’s property and bringing back an automobile in which some other workmen had earlier gone to work; took the driver’s left-hand seat. Peet stood on the ground near Kates and gave him his instructions.

Although the engine continued to run, it did not make enough noise to cause Peet to raise his voice. Breeden kept his seat in front to the right of the driver, and the third man left in the truck was Wilson, who sat astride a board seat in the end of the truck, facing to the north. Peet and Diven walked back toward Bellona Avenue, and saw nothing of the accident until they looked back after hearing the crash of the collision on the crossing. The three men in the truck were the only witnesses of the accident who testified.

Kates was an experienced driver, and the truck was in excellent operating condition, with its brakes in good working order. The truck had a capacity' of one ton, a commercial body and a covered top, with side curtains. The testimony is to the effect that the curtains were rolled, but this is immaterial, as the truck had a cab front, and the door on the right-hand side was open, as it would not stay shut and had been tied back. Peet had stopped the truck, to allow its occupants to separate, at a point where the view of trains approaching the crossing from either the north or the south was wholly ⁹⁶ obstructed by the freight cars and the lumber pile to the north of Stevenson Lane, and the store and postoffice building to its south.

Kates and Breeden were familiar with the-crossing, having traveled over it seven or eight times in Recourse of Reir work on the Zell property. Kates drove upon the crossing without stopping, according to Breeden’s testimony, stopping at the north-bound track, and then proceeding, according to Kates’ version, with Wilson not having any knowledge on this subject; and the right front wheel of the-truck was struck by a part of the engine extending beyond the east rail of Re south-bound track. The engine was drawing an express train at rapid speed, and the sole negligence-imputed to the railway company is a failure to give any signal from the train of its approach to the crossing. Whether-the conduct of Breeden should preclude a recovery in the pending case on the ground of contributory negligence is an inquiry of secondary importance, that need not be further pursued, since the primary and cpntrolling question is whether the record shows Rat the appellant was guilty of negligence in not giving a signal from the train before reaching Re crossing.

The action here was brought upon Re theory that the accident occurred at a public crossing, but the proof was to the contrary. Stevenson Lane is an ancient private entrance or way to the manor house of a tract of land that was formerly owned by the Stevenson family, and is now the property of 'Stanley Zell. The lane runs from the manor house, east and west, across appellant’s railway at grade, to Bellona Avenue, a public highway, for over twelve hundred feet. For more than fifty years the railway company has maintained this crossing, as is commonly done for private railway crossings.

East of the railway, and four hundred and twenty-nine feet from Bellona Avenue, a way known as the Rider Road extends southward from Stevenson Lane through the property of Harrison Rider until it enters the Joppa Road, a public road, which,' running east and west, crosses the railway of the appellant about six hundred feet south of the crossing at Stevenson Lane, and is intersected by Bellona ⁹⁷ Avenue. About twelve or fifteen years ago, a public way, called Thornton Eoad, was opened twelve hundred and sixty-three feet east of Bellona Avenue, and this new highway runs north and south and intersects Stevenson Lane and, further south, the Joppa Eoad. The Eider Eoad and the portion of Stevenson Lane from the Eider Eoad east to the railroad have been macadamized by private parties, but the rest of the lane is a stone and