Sheridan v. Baltimore & Ohio Railroad

Schmucker, J., delivered the opinion of the Court. The appellant sued the appellee in the Court of Common Pleas of Baltimore City for damages for crushing his foot between two cars of a freight train. In the trial of the case below the Court, at the close of the plaintiff’s evidence, granted the defendant’s prayer directing the jury to render a verdict in its favor because of contributory negligence on the part of the plaintiff. From the judgment entered on the verdict so rendered the plaintiff appealed.

There is but one bill of exceptions in the record and that is ⁵⁶ based upon the Court’s action in granting the prayer holding that the undisputed evidence showed that the plaintiff had been guilty of negligence directly contributing to cause the injury complained of. The accident happened at or near the point where the appellee’s branch line of railroad from Baltimore City to Locus "Point crosses Barney street. ■ This crossing is on a curve in the railroad track and about the middle of a stiff up-grade on which- almost every long freight train becomes stalled and is compelled to wait for the assistance of a helping engine,. These stalled freight trains currently block the street crossings, on the grade, for from ten minutes to an hour or more at a. time. The helping engine usually comes up behind the train and'assists by pushing it.

It has long been the custom for the; helping engine to blow its whistle as a signal, as it approaches-the rear of the train, which is answered by a blast from the whistle-on the engine at the head of the train. Both of these signals are given before the train moves. This state of affairs has continued for eighteen or twenty years. - The land lying southwest of the railroad is occupied mainly by factories and similar industrial establishments whose operatives and employees largely reside on the other side of the road, where the improvements are almost exclusively dwelling houses. Many of these employees daily cross the railroad tracks at Barney street in going back and forth between their houses and the factories.

For eighteen or twenty years it has been the custom of these employees, when a freight train is stalled on the track at the crossing, to cross through the train by jumping over between the cars or crawling underneath them without, so far as the evidence shows, any objection or protest on the part of the persons in charge of the train. At times fifty or more of the men working in the factories were seen go through standing trains at the crossing in that manner in a single day. At noon of the 29th of December, 1902, the appellant, who was employed at the Thompson Chemical Works on the south of the railroad, started to go along Barney street to his residence, ⁵⁷ which was north of the track, for his dinner. When he reached the track he found a long freight train stalled there.

Not desiring to cross the train he walked along side the track to Hanover street which was quite a thoroughfare hoping to get through there but he found that street also blocked by the train. He then returned to Barney street where he met one of the brakeman of the train who told him to jump over it, but he crawled underneath the cars and crossed in that way. On his return from dinner toward the factory he went first to Hanover street and found the train still standing across it. He then walked down toward Barney street near which he met the same brakeman who again told him to cross the train.

The appellant hesitated to cross when the brakeman told him he had plenty of time and further said that when they got help they had to give a signal to the engine ahead before starting the train adding, “we can’t leave here until we get a helper and probably we will be here an hour.” The appellant thereupon took hold of two cars and attempted to get upon the bumpers between them so as to cross over the train, but just as he got his foot upon the bumper the train started without signal or warning and crushed his foot between the bumper and the car so badly that it had to be amputated. The appellee admits the negligence of its own servants by requesting the Court to instruct the jury that the appellant was guilty of contributory negligence. The only question that we are called on to determine is whether the appellant’s own conduct at the time of the accident to him was such as to justify the Court below in holding as a matter of law that he was guilty of contributory negligence. This question can be correctly answered only in the light of the special and somewhat unusual facts of the case.

The appellant was not a passenger and was therefoie not entitled