Philadelphia & Baltimore Central Railroad v. Holden

Fowler, J., delivered the opinion of the Court. On the 10th July, 1899, Charles Holden was injured while crossing the track of the Philadelphia and Baltimore Central Rail Road Company. The point where the accident happened is a private crossing called Holden’s Lane. Suit was brought by 'Holden against the Rail Road Company in the Circuit Court for Cecil County to recover damages.

There was a verdict and judgment for the plaintiff for $2,500. During the course of the trial the plaintiff offered to prove “by himself and several other witnesses that the whistle was not blown at New Valley, which is a public crossing 1032 feet •east of Holden’s Lane. The whistling post, however, is about 2,000 feet from that point. The admission of this testimony ⁴¹⁹ is the ground of the first three exceptions.

The other exception relates to the rulings upon the prayers. It appears from the evidence that on the day when the plaintiff was injured he left his father’s house on the north side of the railroad about ten o’clock in the morning to go to Rowlandville. To reach his destination he was compelled to cross the track. He testifies that he was driving a gray horse in a butcher wagon, the curtains of which were painted white.

The horse was gentle and accustomed to the cars. In approaching the track from the north side on Holden’s Lane, the view is clear until within forty-six feet of the track. From that point for a distance of thirty-nine feet the view is obstructed by the bank and bushes, and this condition continues until within seven feet of the track. So that, as the plaintiff said, the view of the railroad is so obstructed at that point that it is impossible to see east, the direction from which the train approached, until the horse’s feet were on the track.

As the plaintiff passed over the thirty-foot space from which he said the view was unobstructed, he listened and looked in the direction from which he was expecting the train to come, if it had not already passed, but he neither heard nor saw anything, and he therefore went on very slowly, at a speed of about a mile an hour, and drove upon the track without once stopping to listen. A number of questions were discussed, but we think it necessary to consider only the two controlling ones of contributory negligence on the part of the plaintiff, and the question presented by the first three exceptions. In the first place we may remark that by conceding the plaintiffs first prayer the defendants admitted that there was evidence to go to the jury on the question of contributory negligence of the plaintiff, as well as of the negligence of the defendant, and therefore there was no error in rejecting the defendant’s first and second prayers, the first of which asked the Court to take the case from the jury because there was no legally sufficient evidence of defendant’s negligence; and the second of which asked the Court to instruct the jury that ⁴²⁰ the plaintiff was not entitled to recover, because his own negligence directly contributed to his injury. In other words having by their concession of the plaintiff’s first prayer, which then became the law of the case, admitted that there was a state of case presented proper for the consideration of the jury, it cannot be allowed to ignore the conceded prayer, and ask to have the case withdrawn from them.

It was so held in the recent case of the B., C. & A. Ry. Co. v. Kirby, 9 1 Md. 316 . McSherry, C. J., there said: “In conceding a prayer there is involved, of necessity, a concession that there is sufficient evidence to support the hypothesis of the prayer.” It is clear, therefore, we think that there was no error in rejecting the defendant's first and second prayers. But it was also contended that for the same reason, if for no other, there was no error in rejecting the defendant’s sixth prayer.

By this prayer the Court was asked to instruct the injury that if they find that the plaintiff approached the track in the manner testified to, and that his view on his near approach to it was in any manner obstructed, that then it was the duty of the plaintiff before going on the track to stop, look and listen for the train, and that if he violated this rule by failing to stop, he was guilty of contributory negligence, and cannot recover. The plaintiff’s first contention is that the language of this prayer is too broad, but we cannot agree with him. We think it clearly announces the established rule, which we said in Hogeland's case, 66 Md. 149 “is one which the Courts ought not to relax, as its enforcement is necessary as well for the safety of those who travel in railroad trains as for those who travel on the common highways.” In the case just cited the rule is thus expressed, “if the track in both directions is not fully in view in the immediate approach to the point of intersection of the roads, due care would require that the party wishing to cross the railroad track, should stop, look and listen before attempting to cross.” Good's case, 75 Md. 537 ; Price's case, 87 Md. 188 ; Watson's case, 91 Md. 344 . The prayer we are considering declares that if the view was in any manner obstructed, it was the duty of the plaintiff to stop, &c. ⁴²¹ This is equivalent to saying that if the track was not “fully in view,” that is to say if there is an obstruction of the view by a hill, a bank, trees or in any manner, due care requires the traveller on the common highway to stop and listen before attempting to cross.

It was also suggested by the plaintiff that if this prayer was correct in other respects it was error to have granted it without adding the qualification that if the engineman saw or by the exercise of due care and diligence could have seen the dangerous position of the plaintiff in time to avoid the injury, the plaintiff was not to be prevented by his own negligence from recovering. But there is no evidence in the case that would justify such modification. The evidence and the only evidence as to when and the circumstances under which the plaintiff was seen by the trainmen, is given by the engineer and brakeman. The former testified that when the engine was about six hundred feet from the crossing, he saw the plaintiff on the lane about fifty feet from the track driving very slowly towards the railroad.

He was perfectly safe where he was, and the wit. ness naturally and properly thought he would stop, Harty v. R. R., 42 N. Y. 468 ; B. & O. v. Savington, 71 Md. 590 ; M. C. R. R. v. Neubur, 62 Md. 391 , but in the language of the witness “he jumped right on the railroad.” It was then for the first time that the plaintiff was in a perilous position and it was then confessedly too late to rescue him. The brakeman did not see the plaintiff until just as he was struck. But although we are of opinion the prayer is in itself unobjectionable, we think it was properly rejected for the same reason that the first and second of the defendant were rejected, that is to say, because the concession of plaintiff’s first prayer necessarily conceded the hypothesis on which that prayer was based and estops the defendant from complaining of the rejection of its sixth prayer. The theory of the first prayer is that although the plaintiff testified to the fact that he did not stop,and although the fact that he did not stop was an admitted fact in the case, yet under all the evidence in the case it was proper ■for the jury to infer that the plaintiff was not guilty of such ⁴²² contributory negligence as would prevent recovery.

But the sixth prayer on the contrary asks the jury to be told that if they believe that same fact—namely, that the plaintiff did not stop, then they have no discretion and their verdict must be for defendant. It follows that the first prayer of the plaintiff which thus became the law of the case, should not have been granted, and the case given to the jury, if there is an admitted fact which demonstrates the contributory negligence of the plaintiff. The language of the sixth prayer leaving it to the jury to find whether the plaintiff stopped, should not be allowed to change the situation, for it was equivalent to saying to the jury, “If you find the plaintiff did not stop (and this you are bound to do, because it is a conceded fact in the case) then you must find for defendant.” S.uch a prayer is in conflict with the plaintiff’s first, which as we have seen leaves it to the jury to find from all the evidence in the case—the conceded fact included—whether the defendant was guilty of contributory negligence or not. By the first the jury are told that you may consider the whole case and decide the two questions at issue—negligence vel no?i of the defendant and contributory negligence vel non of the plaintiff.

By the sixth they are, under the facts in this case, practically told. “It is an admitted fact in this case that the plaintiff did not stop, and therefoie whether the defendant was guilty of negligence is immaterial, your verdict must be for the defendant, and you have no discretion in the matter.” In our opinion a clear conflict is thus presented and hence the sixth prayer of the defendant was properly refused because in conflict with the conceded