State Ex Rel. McLucas v. Western Maryland Rwy. Co.

Marbury, C. J., delivered the opinion of the Court. On August 31, 1946, Charles E. McLucas, the husband of the use plaintiff (appellant) herein, was struck and killed by an empty coal car of the Western Maryland Railway Company. This occurred on Lee Street in the town of Hagerstown. McLucas was walking westerly on the north side of the street.

Just ahead of him was an open area, where were located various tracks of the Railway. To his left was a track which ran to an elevated coal tipple of the Leister Coal Co. This tipple was 387 feet south of Lee Street. This track crossed another track slightly to the south of the center of Lee Street. The last mentioned track ran to the Howard Feed Company’s property on the north side of Lee Street.

These tracks or sidings curved to the west and east respectively shortly before their crossing, and on the plat in evidence in the case, they present a picture of an X, with its center on the south side of Lee Street. Crossing Lee Street to the west of these two tracks are other tracks, and on one of these, north of the street was a Diesel locomotive. In the center of Lee Street, between these tracks and the X made by the sidings above mentioned, the Railway had a watchman. ²⁷ Just prior to the accident the foreman of the appellee was also in the middle, of Lee Street between the tracks. He gave a signal to the railroad employee on the coal car at the tipple and, in response, the latter released the brake on this car, and it started down the incline.

The man riding on it was where he could not see in front of the car, so that he depended on the signals of the foreman. There was nothing further for him to do unless it became necessary to apply the brakes which were modern and effective. The momentum of the car would carry it across the X and to the north side of the area where the foreman wanted it to go. When the car started, the bell of the Diesel engine began to ring to give warning.

The motor of the engine was running. McLucas kept on walking and when the watchman and the foreman saw him still on his way toward the track on which the coal car was coming, they shouted at him and gesticulated in an effort to stop him. The watchman was holding up a large “stop” sign. McLucas was walking with his head down, but he looked up and to his left when the foreman called to him.

The approaching coal car was then directly in his line of vision, and he was three or four feet east of the Howard Feed Company track. This track, in the path in which he was walking, was about thirteen feet east of the Coal Company track on which the car was coming, counting from inside rail to inside rail. The car was about twenty to twenty-five feet from the south side of Lee Street and was moving about seven miles an hour. McLucas did not stop after he looked towards the car.

On the contrary, he started to run, crossed the Howard Feed Company track and the space between that and the Coal Company track, and got as far as the east rail of the latter. He then apparently made an effort to stop, but was struck there by the coal car. After the car passed, the foreman went over to where he was lying on the ground. He said “I didn’t jump quick enough” and almost immediately died. ²⁸ The foreman did not attempt to stop the car by signal-ling to the man on it to apply the brakes.

It appears from the testimony that after the car is half-way from the tipple to Lee Street, the rider cannot see the Lee Street crossing, so that it is doubtful if the man on the car could have seen any signal given by the foreman after the latter saw McLucas running. When the foreman first saw McLucas, the latter was about ten feet from the Howard Feed Company track. At the trial, the widow testified that the route her husband was taking was his usual way to go to work, and that he was perfectly familiar with the crossing at which he was killed. He was 64 years pld.

A suit was brought in the Circuit Court for Washington County in the name of the State for the use of the widow of McLucas under the provisions of the Maryland version of Lord Campbell’s Act, Code, Article 67. After the testimony on behalf of the plaintiff was concluded, the trial court granted defendant’s demurrer prayer and its prayer that the deceased was guilty of contributory negligence as a matter of law. From the judgment for the defendant for costs, this appeal is taken. The appellant contends that