State v. Norfolk & Western Railway Co.

Parke, J., delivered the opinion of the Court. Isaac Rittinger was the owner of a five-passenger Studebaker automobile, and James G. Spahn, a friend, on the .afternoon of December 24th, 1923, drove the owner and his wife to Hagerstown, where they went to spend Christmas with the owner’s daughter, the wife of Frank H. Chairs. It was planned that, after spending Christmas day in Hagerstown, Spahn would go alone with the automobile to Frederick to visit and, on his return, take the owner and his wife back to their home in Baltimore. The party arrived in Hagerstown, went to the home of Frank H. Chairs, and Spahn remained there until about ten o’clock at night, when Spahn, at the request of Chairs, drove the latter and himself to a store to' make some purchases, which had been overlooked by Mrs. Chairs.

On their way back, Chairs suggested to Spahn that they drive to Williamsport for a ride. They accordingly proceeded over the railway crossing of the appellee at Virginia Avenue in Hagerstown and, after staying a few minutes in Williamsport, the two started on their return. Spahn continued to drive and, being unfamiliar with the route, requested Chairs, who- sat on the right front seat, to direct him and to tell him when they approached the railway crossings. The first crossing which they met was that of the Cumberland Valley Railway, and Chairs warned the driver before it was reached.

Appellee’s crossing came next, and it was there that a collision occurred between the automobile ⁶⁸² and the end of a string of thirty-two freight cars, which were being slowly pushed out upon the crossing. The appellee’s railway crossing was at grade and consisted of the single main line track and a siding to its south. The tracks were laid diagonally across the highway, which was fifty-five feet wide, including the sidewalks, and its macadam surface for public travel was about thirty-nine feet wide. Both tracks extend from the west boundary line of the crossing in a straight line for about three hundred feet and then curve slightly to the left.

As you approach the railway crossing from Williamsport, which is south of the crossing, the course of the highway is a direct line for about six hundred feet before reaching the crossing. The view to the left or west of the highway as you near the crossing is unobstructed, except for a two-story brick dwelling and a few small trees which are about seventy-five feet south of the crossing and on the west side of the highway. The testimony is that on the crossing the tracks are visible in daylight for about one thousand feet; and that for a distance of one hundred feet, measured south from the crossing along the highway, there is an unbroken view of the tracks to the west for from nine hundi’ed to1 one thousand feet; and that, at a distance of one hundred and fifty! feet, the view of the tracks in the same direction is from twelve hundred to' thirteen hundred feet, but that, at a distance of two hundred feet from the crossing, a similar view is afforded for two hundred and fifty feet. Hence, with an adequate unobstructed view of the tracks to the west from this last named point, there was no occasion to stop as well as to look and listen before attempting to pass over the crossing.

On the west of the highway, and a short distance south of the tracks, there was the usual railway danger signal post, but the crossing was without street or other light; and the railway company relied upon the signals given by an approaching train and by the crossing watchman to warn travelers by day and at night. The watchman was sheltered by a watchman’s box built near the tracks, and he was equipped at night with a red lantern, which was so made that a red ⁶⁸³ light could be seen from the front- and hack faces of the lantern, but not from its two purposely darkened sides. The effect of this was to make the red light visible in but two and opposite directions-, and the reason for the use of ^’s, type of lantern was to assure that the signal would not be observed by the trainmen when it was- being used to- warn the travelers on the highway. The length of the draft of the freight cars which came in collision with the automobile was about twelve hundred feet, and, as the pushing locomotive was on the curve in a cut, the engineer could not, at this distance, see the end of the draft or directly receive a signal from his brakeman at the other end, hut regulated the movement of his train by signals relayed through brakemen at both ends, and in the middle, of the draft.

The nearer end of the draft was estimated to be from one hundred and fifty to two- hundred feet west of the crossing, and the movement of these freight cars was a yard or shifting operation, which began by the engineman blowing his whistle, when he started to push the draft over the crossing, so as to let the crew and the crossing watchman know the beginning of the propulsion of the draft over the highway crossing. According to the testimony on the part of the appellee, as soon as the engineman gave his whistle, the watchman took his place at the middle of the street crossing, between the main track and the siding track, and swung his lantern to- give warning to the travelers on the highway. While the watchman was so engaged, the automobile occupied by Spalm and Chairs approached the crossing at a rapid speed without stopping, and the draft, as soon as it passed between tlie watchman and the automobile, prevented either the watchman seeing the automobile or its occupants observing the watchman and his- signal. The driver, perceiving in his path, and too late to stop, the freight car, which was slowly moving over the crossing at a rate variously given as four, five and six miles an hour, turned, in his attempt to escape, the automobile sharply to the right and drove off the metaled highway, but not soon enough to- avoid being struck ⁶⁸⁴ by the first freight car, which collided with the automobile and dragged it until, in response to a signal from the front brakeman, which was relayed through -the intermediate brakeman to the engineer, the draft was brought to a stop after it had traveled almost four freight car lengths east of the crossing.

The driver was thrown from the automobile and was found, injured, lying on the- south of the switch and about seventy feet east of the crossing. The dead body of Chairs was among the wreckage of the automobile, which had been swept along and crumpled under the first freight car. The other evidence of the appellee tended to support its theory that the watchman was on the crossing in time, and, with the red light of his lantern displayed to the travelers on the highway, did signal long enough before the car reached the crossing for the driver to have stopped in a place of safety, and that the occupants of the automobile had seen the signal, but either disregarded it or had not looked until too late to avert the accident. The important testimony on the part of the appellant was that given by the driver of the automobile.

His evidence with respect to the accident tended to show that Chairs told him of the first railway crossing on their way into Hagerstown, and that he slowed down and looked ahead and to the right and to the left before he drove over, and that at a curve in the highway, which the proof on the part of the appellee established was six hundred feet before the crossing of the appellee would be passed, Chairs again warned him of the railway crossing where the collision occurred, and asked him to slow down. In response to this warning and direction, the driver gradually reduced his speed from fifteen miles an hour to six or eight miles an hour, and about one hundred feet from the crossing he disengaged his clutch and let his automobile drift forward, meanwhile listening attentively and looking ahead and to the right and left until the railway crossing was reached, where, not having heard, nor hearing, anything to warn him of the oncoming freight cars, and not having seen, nor seeing, the cars, or any light or watchman, ⁶⁸⁵ the automobile drifted, without stopping, upon the railway crossing, being kept on the right side of the highway. The automobile had its front wheels about on the siding when its driver heard a shout on his left. He turned his head, saw, at the edge of the macadam of the highway, the approaching freight car and some one on it with a light, and immediately engaged his clutch, and did all in his power to escape, turning to the extreme right of the roadway, but before the driver could get off the siding the automobile was struck on the left, near the rear seat, and overturned, and then the driver lost all recollection of what happened until he was picked up on the south of the siding.

The driver of the automobile further testified that Chairs warned him some six hundred feet away of the railway crossing in question, and the appellee, in the production of its evidence, proved an admission by the driver, containing the statement that his companion had notified him of the nearness of the crossing. It must be accepted, therefore, as a fact established by this record, that Chairs gave the driver due notice of the presence of the crossing. It is also the testimony of the driver that Chairs suggested the speed of the automobile be lessened, and that this was done in the manner described. The driver further stated that he knew from his companion’s