Taylor v. Western Maryland Railway Co.

⁶³¹ Pattjsoiv, J., delivered the opinion of the Court. This is an appeal from a judgment for the Western Maryland Railway Company, the appellee, in an action brought by W. Ralph Taylor, the appellant, to recover for personal injuries sustained by him and the destruction of his automobile, resulting from its collision with a locomotive of the defendant at one of its crossings near the Gity of Baltimore. At the trial of the case, the court, at the conclusion of the plaintiffs evidence, directed a verdict for the defendant, first, because of a want of evidence legally sufficient to entitle the plaintiff to recover, and, second, because the plaintiff, by his own negligence, directly contributed to the injuries and loss complained of. The plaintiff, W. Ralph Taylor, testified that about 5.15' o’clock, in tbe evening of December 23rd, 1927, he was driving his automobile on Buck’s Lane near Arlington, on his way to his home in Lansdowne.

It was, at the time, as stated by him, “getting very dark” and as he approached the crossing of the defendant’s road he saw, not far ahead of him, some children playing in the street, which caused him to slow down, and when about one hundred or one hundred and fifty feet from the tracks, he, looking to his right over a vacant lot adjacent to the defendant’s right of way, saw the headlight of a locomotive on the southbound track going in the direction of Baltimore. Whereupon, he stopped his automobile, as he says, “just east of the tracks”. He testified that he was thoroughly familiar with the crossing and its surroundings, that a short distance from the tracks “you go-down a little dip and then start a rise that leads up to- the-crossing.” When asked if he did not know, when he started up the rise that leads to the tracks, that he was close to them, he acknowledged that he did, and that it was then that he stopped ; that before he stopped he was going slowly and had his automobile “under perfect control,” and when further asked if he thought his car had stopped sufficiently far from the north-bound track not to be struck by the train coming on that track, his reply was, “Positively. I was sitting there ⁶³² just as much ease as I am on this chair.

Q. Then you were satisfied that, even though the train did approach from your left, that you had nothing to fear? A. Yes, sir, absolutely.” As he said: “The train continued to come toward the city, and knowing that that train was inbound I stopped, with the intention of it passing, and I wasn’t concerned very much about that tain coming in. I was concerned about the one going out, and I kept looking in the opposite direction to see that I would be clear from the one going out.” “I was constantly looking from the right to the left to see if anything was approaching, so that I would be careful that nothing would happen, when I looked around (to the left) and there on top of me was this locomotive”. The locomotive mentioned, which was on the north-bound track, the nearest track to the plaintiff, struck his automobile and turned it over against the switch stand, and the plaintiff was thrown out of the automobile upon the ground and injured, and his car, as a result of the collision, was totally destroyed.

He also testified that, while lying there upon the ground, a man dressed in overalls, standing along side of the train, not far from him, whom he took to be the engineer, said to him, “I saw you, I thought you was in the clear and I could have stopped, and I am sure my end sill is what struck you.” As stated by the plaintiff, he was more concerned about the movements of the north-bound train than he was about the south-bound train, and, in stopping his car where he did, he was seeking a position of safety from the north-bound train and was positive or certain that he was safe at the point where he stopped, though, in ascertaining this fact, he failed to use his brighter lights, which were available to him. Ho part of his automobile when stopped was upon the tracks of the defendant, but it was so near thereto that a projecting part of the