Philadelphia, Wilmington & Baltimore Railroad v. Hogeland

Alvey, C. J., delivered the opinion of the Court. This is an action brought by the appellee, the plaintiff below, against the appellant, the defendant, to recover for injuries received in consequence of the alleged negligence of the defendant in the management of its railroad train. The injury was received at a crossing of a country highway, .and while the plaintiff was being conveyed - over the railroad tracks, at such crossing, by a collision of the defendant’s train with the vehicle in which the plaintiff was riding. It appears that, on the morning of the 13th of August, .1881, the plaintiff, by invitation of her brother-in-law, Joseph Richardson, left her home in a small one horse ¹⁵⁸ covered wagon or carriage, for the pirrpose of going to the town of Elkton; and which horse and vehicle had been hired by Richardson, and were under his exclusive control and direction, the plaintiff being a mere passenger by invitation, Richardson himself being the driver.

They proceeded on their way, and for a part of the distance between the house of the plaintiff and the crossing at which the accident occurred, known as the Red Mill crossing, the railroad, running in the same general direction of the highway, •could be seen, hut at other parts it Could not; and in nearing the crossing, according to the testimony of Richardson, who testified as a witness for the plaintiff, he kept a careful look out for approaching trains, hut saw none, nor did he hear the sound of any whistle or hell; hut just in the act of his crossing the tracks of the railroad, a train reached the crossing from the direction of Baltimore, and the result was a collision, and the infliction upon the plaintiff a severe and most distressing injury. As by the prayers in the case, the legal' sufficiency of the evidence, on the part of the plaintiff, to entitle her to have the case submitted to the jury, was made a question to the Court, it may be well to state that portion of Richardson’s testimony which describes the accident, and the manner of its occurrence, in the terms in which it is set out in the hill of exception. That witness testified that plaintiff rode on the left side and the witness on the right side of the carriage, on the same seat; that the 'curtain behind was up, and also the two front side curtains, but the two back side curtains were down; that the witness was driving and passed along the public county road in a direction nearly parallel to defendant’s railroad, until they reached Cameron’s house, near the Red Mill ■crossing; that the railroad, which is distant several hundred yards from the county road, was obscured in many places by bushes, and trees, and cuts. Coming up from the mill by Cameron’s house witness was looking out ¹⁵⁹ for a ballast train that he knew had been the day before working on the railroad; that at Cameron’s yard, a point about four or five hundred feet from the Red Mill crossing, witness stopped the carriage and looked out behind, to see if he could see or hear a train, but saw or heard nothing; that further on be looked out again from the back of the carriage, but saw or heard no train ; that further on still he looked out when going up the grade to the crossing, but saw or heard nothing of the train.

That when on the south bound track he heard the rumbling of car wheels; looked and saw the train upon him; that he drew the horse around facing towards Elkton, in what is called the six foot way between the tracks, and the horse moving forward, drew the carriage in a line parallel with the north bound track. That as the engine passed, it sounded the whistle, which frightened the horse, which was restless and excited, so that he turned at right angles with the track, and the carriage was immediately struck, and plaintiff and witness were thrown through the air; that it was all done in an instant. That if the engine had not whistled and frightened the horse, no accident would have occurred, as the horse, though' nervous and excited, was under control. That he looked out four times for the train before reaching the crossing ; the first time was on the hill near Cameron’s yards ; then he stopped the horse and took a good look, but saw nothing; that he had a good view for some distance from the hill, and the train was not in sight, or he could or would have seen it; that he looked out when he was about twenty feet from the track; and that he heard no whistle before the train reached the crossing.” He also testified, that the plaintiff “ had nothing to do with the carriage, the hiring of it, or in any way.” And on cross-examination, he testified, that the plaintiff “ did not call his attention to the train, nor did he see her look, and heard no alarm from her.

Does not know whether ¹⁶⁰ she-could have seen a train or not; knows that he could not; and could not say whether she leaned out of the carriage or not; she may have looked out behind or out of the front; witness could not say what she did.” Other witnesses testifie'd, who were within hearing and seeing distance of the crossing at the time of the accident, that neither whistle nor bell was heard from the train as it approached the crossing, but the whistle was sounded at the crossing about the moment of the accident. The train was running at a speed of from 40 to 45 miles per hour. On the part of the defendant, testimony was given that the plaintiff and the driver of the carriage could and ought to have seen the approach of the train, for some distance before reaching the crossing, and in time to have avoided all danger of a collision. Proof was also given by the defendant that the whistle, was sounded, and the bell was rung, as signals of the approach of the train to the crossing ; but the speed of the train was not slacked before reaching the crossing, though the carriage on the road was seen approaching by at least one of the hands on the train.

The evidence shows that the crossing was one of more than ordinary danger, and therefore required the exercise of more than ordinary care, both on the part of parties attempting to cross the tracks of the railroad, and of the managers of the passing trains. This duty is mutual and reciprocal, and not confined to one party only. The railroad trains, from the nature of things, have the precedence of passing the crossings of public ways unobstructed; but it is the duty of those directing the trains to be careful to give all proper and sufficient signals of their approach, and to take all reasonable precaution, in view of the nature, of the crossings, to avoid collision. Eailure in the strict performance of these duties to th'e public, whereby injury is inflicted upon individuals, will subject the company to liability to respond, in damages to the injured ¹⁶¹ party.

But while such is the plain duty of the»managers of railroad trains, it is equally the duty of those approaching the crossings as travellers on the highways, to approach with care, and the more difficult and dangerous the crossing, the greater the care required. The rule is now firmly established in this State, as it is elsewhere, that it is negligence per se for any person to attempt to cross tracks of a railroad without first looking and listening for approaching trains ; and 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. Especially is this required where a party is approaching such crossing in a vehicle, the noise from which may prevent the approach of a train being heard. And if a party neglect these necessary precautions, and receives injury by collision with a passing train, which might have been seen if he had looked, or heard if he had listened, he will be presumed to have contributed, by his own negligence, to the occurrence of the accident; and unless such presumption be repelled, he will not be entitled to recover for any injury he may have sustained.

This is the established rule, and it is one that the Courts ought not to relax, as its enforcement is necessary as well for the safety of those who travel in railroad trains as those who travel on the common highways. Md. Cen. R. Co. vs. Neubeur, 62 Md., 391, 399, 400 ; Balt. & Ohio R. Co. vs. Owings, 65 Md., 502 . " At the trial, after all the evidence was in, the plaintiff offered six prayers for instruction to the jury, as to the law of the case, and the defendant offered ten.

Of the prayers offered by the plaintiff, the first, third, fifth and sixth were granted ; and all those of the defendant were rejected as offered, but the first, third and sixth of those prayers were modified by the Court, and in their modified ¹⁶² form were granted. The granting of the prayers on the part of the plaintiff, and the refusal to grant the several prayers as offered by the defendant, were made the subjects of exception by the defendant. The defendant, by one of its prayers, asked that the case .be taken from the jury, upon the ground, as contended, that there was no evidence legally sufficient upon which a verdict could he based for the plaintiff. But that such an instruction could not be granted, in view of the