State Ex Rel. Emerson v. Baltimore & Ohio Railroad

⁵⁸⁸ Parke, J., delivered the opinion of the Court. The action brought in the appeal at bar is for the use of the mother of Pearl V. Emerson, a young girl of sixteen years, who, while riding as a passenger for hire in a motor bus of Howard R. Poe, was killed by the collision of the bus and a through express train of the Baltimore & Ohio Railroad Company, a public carrier, at a highway railway crossing in Rockville. The defendants are the owner of the motor bus and the railway corporation. The case against both defendants was submitted to the jury, which rendered a verdict against the owner and one in favor of the corporation.

The appeal is taken by the plaintiff. The plaintiff asserts there is error in the adverse rulings on the testimony and the prayers; and the railroad company, one of the defendants, maintains the case should have been taken from the jury on its two refused prayers, on the theory that no primary negligence was shown on the part of the corporation. At the outset, it may be said that there was sufficient negligence shown on the part of the driver to charge the owner of the motor bus with legal responsibility for the accident. Furthermore, the young woman killed was a passenger for hire, who was without fault, and the negligence of the driver was not imputable to her.

Philadelphia W. & B. R. Co. v. Hogeland, 66 Md. 149 , 7 A. 105 ; Balto., C. & R. Co. v. Turner, 152 Md. 216, 228 , 136 A. 609 . Under a local statute of Frederick County, where the case was tried, the exceptions reserved by both sides are for review on appeal, but not necessarily so when there is a reversal without a new trial. Code Pub. Loc.

Laws (Flack) art. 11, secs. 84-86. Ehrhart v. Board of Education, 169 Md. 668 , 182 A. 424 . So, the chief questions are whether the testimony tended to show primary negligence on the part of the carrier, and, if so, was that question properly submitted to the jury by the granted prayers. There are also some subsidiary rulings on the testimony for consideration.

Howard R. Poe is a carrier for hire in the operation ⁵⁸⁹ of motor busses for the transportation of school children over the public highways of the state. While so engaged, his agent, on April 11th, 1935, drove a motor bus from Williamsport, Washington County, along a public highway, which crossed at grade in the municipality of Rock-ville, Montgomery County, the double railway tracks of the Baltimore & O'hio Railroad Company, a steam railway company engaged! in the transportation of passengers and freight for reward. The long bus was filled with twenty-seven high school children in the care of their teacher. They were on their way to College Park, and reached, in the late afternoon, the south side of the railway crossing at Rockville, and drove northward to their destination, where they were to see a chemistry show and attend a lecture.

The bus left Williamsport at 4:45 p. m. and arrived at College Park at 7:15 p. m. After the close of the program at College Park, the bus and its passengers returned by the route they had come. The driver was on the left front single seat operating the bus. An aisle ran down the center the length of the bus with seven seats for two passengers on either sid!e.

The seats were occupied by two of the pupils on every seat, except one on which the teacher sat, with two of her pupils, back of the driver. Pearl Emerson was on the last seat, next to the window, on the left side. The fifth window on the left of the bus was partly open, as probably was another. The entrance to the bus was by a door, with a glass window, on the right side opposite the driver’s seat.

There was a window on the left, opposite to the driver’s seat, and back of this window and the door on the right were a line of windows on each side of the bus. The party left College Park about half past ten o’clock at night. It rained intermittently and as the bus approached the railway crossing it was drizzling enough to require the wiper of the windshield to be used. The driver had wiped off the moisture which had condensed on the windshield in the interior of the bus, and, except for the space in front of the driver which was kept clear by the ⁵⁹⁰ automatic wiper on the outside and by the driver on the inside, the rest of the windshield and the closed windows were covered with rain or moisture which obscured the vision.

The headlights of the bus were burning. After leaving College Park, the bus had been operated at a moderate speed, and the driver, who observed that he was approaching the railway crossing at Rockville, reduced! the speed to ten or twelve miles an hour. He did not stop, but drove the bus at this speed south on the railway crossing. The driver increased the speed while on the crossing, and the bus had gone over the first or north and westbound track and had partly cleared the second or south and eastbound track, when a fast through train, which was running east on the south track, on time, and at the rate of fifty-eight or fifty-nine miles an hour, struck, on the crossing, the bus on its right side, about three feet from its rear.

Eight Children on the right rear seats of the bus, and six on the left rear side, were killed. Pearl V. Emerson was among them. The accident occurred at about half past eleven o’clock. The teacher was awake and so were some of the students.

They had traveled far and it was late. There was no singing, nor loud noise, nor was any one talking to the driver, and every one was seated. So, the passengers were doing nothing to divert the attention of the driver in the operation of the bus. The driver knew of the railway crossing.

The first notice he 'had of its proximity was given by the state highway commission, which had caused! to be erected its standard railway crossing sign on the west side of the highway, so as to confront the traveler on the right lane of travel with a timely warning. From this point, as the bus continued to move southward towards the railway crossing, there were no buildings on the right or west of the highway to obstruct the view of the railway tracks to the west of the crossing, except a shed for waiting passengers and a tool shed. The passenger shed was 189 feet,, and the tool shed 775, west of the western edge of ⁵⁹¹ the macadam of the highway. Both sheds were about fourteen feet from the northernmost rail of the tracks, and were built parallel with the railway.

The passenger shed fronted twenty-six feet on the railway tracks, and was nine feet wide and ten or eleven feet high. The tool shed faced 28.5 feet on the tracks and was ten feet four inches wide. On the driver’s right as he went south there was, along the west side of the highway, a bank whose crest along the highway was from four to five feet, until near the railway right of way it sloped abruptly to a level strip about fourteen feet wide, which extended westward along the northern rail of the westbound track. The general slope of the ground west of the highway was toward the railway, the surface was higher north of the passenger shed than at the roadside.

The railway tracks west of the crossing extended 1,150 feet in a straight line, and then went towards the north on a curve into a railway cut. The distance between the north rail of the westbound track and the north rail of the eastbound track is 13 feet. The effect of these physical conditions was 'that between sixty-three and twenty-six feet from the north rail of the westbound track the approach of a train west of the passenger shed could be observed as it came out of the railway cut when the observer was looking west back of the passenger shed in line with the opening between the two sheds, which, according to the testimony, would be momentary. At this station of twenty-six feet, the traveler’s line of vision would extend diagonally in front of the passenger shed 525 feet west of the crossing along the eastbound track.

From the twenty-six foot point in the highway southward the view back of the waiting station to the west was obstructed for twelve feet by the intervening width of the end of the station, so that the only portion of the track which was visible was included between the crossing and the intersection of the tracks by the prolongation of a line from the eye of the observer and the southeast corner of the passenger shed. As the observer moved southward, the view west was gradually ⁵⁹² extended beyond the 525 foot point until when, at a distance of fourteen feet from the northbound rail of the westbound track, his vision was no longer obstructed to the west, by the side of the shed, and he had a clear view of the straight tracks to the west of at least 1,150 feet and 300 feet beyond on the curve. On the west side of the highway and north of the crossing there was an upright post, with cross-arms. Diagonally opposite, on the east side of the highway and south of the crossing were a similar post and cross-arms.

Below the cross-arms was a signboard parallel with the railway track and perpendicular to the highway. All were painted white, except that on the cross-arms were painted in large black letters the warning: “Railroad Crossing”; and that on the signboards were painted in bold black letters the plain notice: “No Watchman on Duty from 10 :00 P. M. to 6:00 A. M.” Under the signboard was a box, fourteen inches long, eight inches wide, and six inches deep, in which a lighted red lantern burned at night while the watchman was away. All these signs were on the right side of the road as the traveler on the highway approached the crossing. There was, also, in operation at the time of the accident, two electric crossing bells to give warning of an approaching train.

Each bell was on a post, and one stood north and the other south of the tracks, and on the west side of the highway a few feet from the edge of the macadam. The bells began to ring when the approaching eastbound train was 3,578 feet west of the crossing. The crossing was illuminated by two electric street lights on the east side of the highway and close to the north and south boundaries of the railway. From these facts, it appears that the driver of the bus had sufficient time to perceive and to avoid the dangers of the railway crossing.

The teacher was awake and gave the most intelligent account of the accident. She testified that she was looking and listening and that she did not see the train nor hear a whistle nor bell, but that she could not say the bell was not rung nor that the whistle was not blown, and that ⁵⁹³ just about the time the bus got to the cross-arm or eight to ten feet from the cross-arm of the railway signal on the north side of the railway right of way, which was eighteen feet from the railroad track, she thought she saw a flash of light like an airplane beacon, and then complete darkness. She noticed an automobile approaching from the opposite direction which came across immediately before the bus went on the crossing. After the bus was on the track, she saw the headlight of the train and heard the noise of the train as it came upon them.

The headlight of the engine illuminated first the front of the bus where the driver was sitting and then, as the bus went forward, the front of the bus passed out of the shaft of light projected by the headlight of the engine and became dark, but the illumination continued in those sections of the interior of the bus which passed at an increased speed through the shaft of light cast by the headlight of the train. It is quite evident that the teacher did not look to the west after the bus had passed the front line of the passenger shed, because if she had, she would have seen the headlight of the train before its headlight streamed into the forepart of the bus. And, so, with the others in the bus who testified that they looked to the west and did not see, until immediately before the collision, the headlight of the train, which the testimony established was a powerful electric light, in good condition, that shone ahead like the shaft of an airplane beacon. The testimony of the teacher and of other witnesses produced on the part of the plaintiff is negative testimony that the bell on the engine and the bells at the crossing were not rung and the whistle was not blown as the train approached the crossing, but such testimony of inattentive or patently preoccupied witnesses will not prevail against the affirmative testimony of the actors who rang the bell and blew the whistle, and of the other and disinterested witnesses who, either as actors or observers, rang the bell or heard the bells ringing, and blew the whistle or heard it blowing.

Balto. & O. R. Co. v. Roming, 96 Md. 67, 78-80 , 53 A. 672 ; Columbia & Port Deposit R. Co. v. State, use of ⁵⁹⁴ Huff, 105 Md. 34, 40 , 65 A. 625 ; Klein v. United Rys Co., 152 Md. 492 , 137 A. 306 ; Western Maryland Ry. Co. v. Myers, 163 Md. 534, 538 , 163 A. 700 . If there had’been, with this negative testimony, affirmative testimony that the signals had not been given, the question of whether the signals were given would have been an issue of fact for the jury, provided the positive statement is credible. Northern Central Ry.

Co. v. State, use of Gilmore, 100 Md. 404, 415 , 60 A. 19 ; Balto. & O. R. Co. v. State, use of Black, 107 Md. 642, 663 , 69 A. 439 , 72 A. 340 . If the physical conditions were such that either the witness was not in a situation nor in circumstances certainly to see or hear, or if he had looked or listened when he must have seen and heard, his positive statement is either negative or incredible testimony. It is incredible that a witness looked down a straight track of at least 1,100 feet, and did not see a powerful headlight until almost the instant of collision. With, respect to the signals, the testimony shows the witnesses, after an automobile ride from Williamsport, and a long evening’s diversion, were returning home late at night in a rain or drizzle, in a- heavy motor bus whose windows were closed, except one or two were down a short distance from the top, and whose operation was in the control of a driver provided for that purpose by the owner of the bus.

Under these circumstances, the testimony given by the passengers with respect to the railway signals remains negative in nature. Western Maryland R. Co. v. Myers, 163 Md. 534, 537-539 , 163 A. 700 , supra; United Rys. & Elec. Co. v. Crain, 123 Md. 332, 340-351 , 91 A. 405 . The diriver of the bus was offered by the owner.

The testimony is that the motor bus was equipped with hydraulic four-wheel brakes, with a “booster” brake to make the bus stop more quickly. At a speed of ten miles an hour, the bus could have been stopped in three feet. The driver noticed the red light at the crossing and slowed down to between ten and twelve miles an hour. The door of the bus was not closed tight at the top.

He looked to the right and to the left for the approach of trains. An ⁵⁹⁵ automobile came over the crossing from the south before the bus was driven on ¡the crossing, and the driver testified its headlights blinded him about ten feet from the track. He did not stop, although being blinded at this safe distance from the nearest track gave him another and imperative cause to stop, look, and listen. If he had stopped at the place he fixed in his testimony, he would have been absolutely safe, and, in the quiet, he would have heard the ringing of the crossing bells, and the signals and noise of the approaching train.

The driver merely slowed to the speed of from ten to twelve miles an hour, and drove upon the crossing. He testified that he continued to look to the right and to the left, and that he heard neither crossing bells, engine bell, nor whistle and, although the windshield was clear, inside and out, in front of him, and the folding double door of the bus to his right when, closed did not fit but had a narrow opening about three inches wide extending downward from the top about thirty inches, he did not know