Siejak v. United Railways & Electric Co.

Adkins, J., delivered the opinion of the Court. The accident in this case occurred at the intersection of the right of way of the appellee which runs north and south, and Eifth avenue, also known as the Shell Road, which crosses the right of way almost at right angles and runs nearly east and west-. Trappe Road runs northwest and southeast, crossing the railroad tracks about 150 feet north of Eifth avenue and crossing Fifth avenue about 100 or 150 feet east of the railroad. On the north side of Fifth avenue, adjoining the right of way on the east side, is a building known as Tolson’s Store about 10 or 12 feet from the east or northbound tracks.

Between this store and the track, near the north end of the store1 and about 50 feet from Fifth avenue, is a small waiting ■station. The east track is the northbound track on which trains run from Sparrows Point to Baltimore and the west track is the southbound track from Baltimore to Sparrows Point. The three-car train which struck and damaged1 appellant’s truck was running on the west or southbound track and the accident occurred on June 5th, 1918, at about 4.30 P. M. or 5 P. M. The truck was heavily loaded with several tons of tin cans. It appears- from blue prints, photographs and other evidence, that on approaching the Fifth avenue crossing from the east the view of the tracks north of Fifth .avenue is entirely obstructed, from Trappe Road to within about ten or. twelve feet of the northbound track, by Tolson’s store, and for a further distance of eight feet partially ob- . strueted by the waiting room which is ten or eleven feet high, so that after crossing the Trappe Road one would have to get ³⁶⁹ with in from 4 feet to 18 inches of tlie northbound track before having a clear view of the track looking north, but at that distance there was an unobstructed view for the distance of two blocks up the track to a curve in the railroad.

The train which struck the truck, according to appellant’s witnesses, was running at a high rate of speed and gave no signal on approaching the crossing. Back of Tolson’s store at or about the intersection of Trappe Road and Eifth avenue appellant stopped and looked up and down the track and listened for approaching trains, but neither saw nor beard any. He was coming from the Bethlehem Steel Company and had with him his employer, Mr. Wilson, and his (appellant’s) son, seven years old. In answer to a question what he did before he came to the crossing, appellant testified: “Well, before I came to the crossing, because I seen before it is a killing place there, killed my friend.

I used to haul wood for him with a horse, so I knew there was a bad crossing there, and I stopped about a minute or two; I believe about two minutes anyhow, because fromj MeComas’ saloon coming across from the Monumental Road I said to Mr. Wilson, this is a very bad crossing and 1 like to save you and myself because I know it is a dangerous placo, those cars run wild here, some of them stop and some of them don’t.” He was going very slow down hill. “This (indicating) is Tolson’s. Back of that store is Graceland 150 feet, and I tried to hear from the side that car whistle; they whistle like Pennsylvania cars; and I didn’t hear no whistle. I can hear when a. train whistles or them cars whistle, hut I didn’t hear no whistle or bell, and automobiles went by me, they went ahead of me, and I went, slowing down, drifting with the road, because I had thirty boxes of heavy tin, and I was coming-right to the crossing. Some man came there and held his hand.

I don’t know what that meant; and something hit me.” “If I would stop on the crossing I would have been killed right there, me and my hoy and Mr. Wilson. I couldn’t stop ³⁷⁰ my truck because I put my brakes down and I was going slow in first gear.” i “(The Court) : You stopped right where the Trappe road runs into the 'Shell road?” “Yes, I couldn’t stop> any other way, Mister.” In answer to a question why he stopped there he said: “Well, I stopped to see is them cars running so fast, I could see them. Then I drove down. The truck, the car was not running.

I had the brakes on, the clutch you know and the brake, and I let the truck float with the weight, and as soon as I took my brake off and the clutch the truck started to run, and I put my first gear and I was running ever since in first gear.” “Q. Then, when you got down to Tolson’s corner, the car track is right there, isn’t it ? A. Yes. There were two automobiles; one was loading, I believe gasoline; and the other’ one, I don’t know what he was doing. Pleasure oars, Avaiting for people to come from the city.” He was following a car ahead of him which crossed over safely about five or six feet ahead of him.

When he got down to. Tolson’s corner couldn’t see the electric car coming. It was so crowded with people there on both sides; couldn’t see any ear; tried to look over them and couldn’t see; he could see over the people. At another place witness says he could not see over the people on account of his seat being low in the car, about four feet from the ground.

Oar was running slowly, about five miles an hour; front wheels of car about three feet ahead of his seat; was sitting on left side; when he got to Tolson’s corner looked but didn’t see car, don’t know why he couldn’t see, can’t understand that; couldn’t see because of a lot of big trees growing on both sides; (photographs don’t disclose any trees likely to interfere with vision). Asked if anything else interfered with him, witness replied, “No, nothing was interfering with me.” Here witness’ counsel asked if waiting box had anything to do with his looking up' in the direction of the city for the approach of a oar. His answer was: “That time Avhen I ³⁷¹ came down to tlie crossing tlie people, the men. ran out in the path, I don’t know what happened, and T had a load of tin on the truck and I was going very slow and I didn’t sec no car coming, and the track on the right side, crossing from Sparrows P'oint, I didn’t see no car coming, and from that side I didn’t see no car.” When he got up hy Tolson’s two automobiles were there, one along side Tolson’s, one was a little bit further, towards the track more, witness was between them; ho was on the cement, they were on the dirt, the ear he was following “was in front of me, he go by”; when he got there (that space between the track and Tolson’s) he couldn’t see; “Couldn’t see because there1 were men there, a whole lot of men there, waiting for a car, both sides,” “I didn’t see no oar coming that minute; nothing to keep him from looking down towards Sparrows Point. Asked again whether the watch box or reception box had any effect upon his seeing, his reply was: “Oh, yes; because that roof is painted kind of red and I couldn’t see it very good.” “But,” asked the Cburt, “did the box stop you and tbe people stop you too from looking up the track?” Answer: “I gyiess it was the box stopped me from seeing the car.” Oin crossrexamination the witness said he knew all that country down there very wellj had been up and down the Shell road thousands of times; had been hauling tin up and down three times a day each way since April; knew the cars ran down there fast and that some of them didn’t stop; knew it was a dangerous place; “Now I go with my horse I send a boy out a square away before I go there.

I know one accident, I Wouldn’t get another accident at all”; would have sent the boy ahead if he had known the car was coming. The boy didn’t go because he didn’t tell him to get off; knew the warning sign, “Stop, look and listen” was there; saw northbound oar from Sparrows) Point go by when he was 100 feet away from the back of Tolson’s store; when he got to Tolson’s was on his slow gear; took it out of gear and stopped and looked. “Then I put him in low gear to start up again because my engine was stopped, and when I lifted the brakes ³⁷² up and clutch up, then she started to run a little, and then I put it in gear and chug, chug, chug, she went and I went slowly in first gear, for ray brakes wouldn’t hold it. In first gear she couldn’t go no faster.” Appellant further testified that the first time he saw the car that struck him was when “I was about three feet over the track back of my seat, then I saw the car.” Wilson, who was on the truck with appellant, testified 'that ,the truck was stopped at about the Trapp e road intersection with the Shell road, and gear shifted into second or low and they looked out for the car; from that point they kept on going right along" until they were struck; the first he saw of the car or train was when they got far enough beyond the corner of the store-to look up the trade; witness was sitting on the right side; the train was then about 100 yards up the track; saw people holding up their hands as a warning when the truck was about on a line with the front of Tolson’s store, six or seven feet from the track, then just as soon as they held up their hands or they thought there was danger appellant applied his brakes immediately, “I don’t know how fast, he shut it down just as fast as he could. There is a little incline there going down towards the trade, and probably he couldn’t shut it off as quick as he wanted to, hut he applied his brake the moment somebody raised his hand up.” In answer to a question why appellant couldn’t stop the truck, witness said: “Well,' of course you can understand if the truck is loaded down with eight or ten thousand pounds of stuff the natural law of gravity will carry that truck along at such speed that it would be next to impossible to stop’ within three or four feet, and he didn’t wánt to stop' of course I presume on the northbound track, he didn’t want to take a chance.

Of course, I don’t know what his feelings were; I knew what mine were; I just looked at that car and couldn’t have seen anything else. How he might have turned down the southbound (probably meant northbound) track if he had thought there wasn’t a car coming there, hut he didn’t know that of course, and rather than take a chance stopping in the ³⁷³ track, he tried to get across that track, because he was so close to it that, to all intents and purposes, it seemed that ear was just about to hear down on the front seat we were in, and I thought sure it would, aud that’s all I remember until I was picked up off the road.” On cross-examination the witness said he didn’t think they could have seen the car at the corner of Tolson’s, but added “If you wish me to make a further statement we could seo the car when we got closer to the southbound track, going towards the city.” He must have meant the northbound track, as he later said, “we would have to pass that store,” and besides he referred to the track going towards the city. Several witnesses testified a train on the southbound track could not be seen without getting on the northbound track, and also testified that the approaching train was running very fast and gave no signal. One of these witnesses however said lie was on the east side of the northbound track; could see up the track; saw the car coming — clear up' to the curve.

It is rattier significant that of the crowd of witnesses of this accident only four besides the appellant and Hr. Wilson, who was with him on the truck, appear to have testified for appellant. The appellee