Thomas v. Baltimore & Ohio Railroad

Morton, J., delivered the opinion of the Court. Freda Thomas, a fifty-three year old widow, brought suit against The Baltimore and Ohio Railroad Company and James Kostik, a locomotive engineer, alleging that their negligent conduct caused the death of her fifty-five year old husband, William Henry Thomas, who was killed almost instantly while attempting to drive his 20-ton dump truck across the Rock Cut Quarry railroad crossing near Corriganville in Allegany County, Maryland, as a result of being hit by an oncoming 94 car freight train being hauled by two diesel locomotives. At the conclusion of the entire case, Judge James S. Getty, who presided at the trial in the Circuit Court for Allegany County, directed a verdict in favor of The Baltimore and Ohio Railroad Company and the engineer of the train, James Kostik. In this appeal by Mrs. Thomas, the surviving spouse and personal representative of the deceased, 1 it is contended that the trial judge erred in finding, as a matter of law, that the railroad and the engineer were free of primary negligence; in finding that the deceased was guilty of contributory negligence; and in refusing to apply the doctrine of “last clear chance.” ²¹⁹ The facts are relatively simple and not in substantial dispute.

The point at which the main line tracks of the B. & O. Railroad cross Rock Cut Quarry road is known as the Rock Cut Quarry crossing. The road provides access from Maryland State Route 36 to a stone quarry, a coal yard and a number of houses. State Route 36 runs roughly east and west paralleling at that point the main line of the B. & O. Railroad which consisted of an eastbound and a westbound set of tracks. The highway is approximately 30 feet south of the B. & O. right-of-way and the gate at the entrance to the quarry and coal yard is approximately 78 feet north of the right-of-way.

Shortly before 5:30 p.m. on December 7, 1970, the deceased delivered a load of coal to the yard and as he was driving over the crossing to return to Route 36 his dump truck was struck broadside on the passenger side, or right hand side, by the freight train. The truck was turned over so that the driver’s side was flat on the tracks and was pushed some 1100 feet down the tracks before the train could be stopped. The truck caught fire as it caromed down the tracks and the cab became a holocaust which resulted in the almost instant death of the driver. The head brakeman of the train testified that the train, consisting of 94 freight cars being hauled by twin diesel engines, was coming from Connellsville, Pennsylvania, on the eastbound tracks heading for Cumberland, Maryland.

According to the brakeman: “It was cold, dark and clear.” He testified that after passing over the crossing at Corriganville and rounding a turn, he had an unobstructed view of the Rock Cut Quarry crossing for a distance of some 1800 feet down a straight stretch of tracks. The brakeman tells the story as he saw it: “Just after we come around the curve and started down the straight line, I seen these headlights coming from the stone quarry, and I figured it was a truck or vehicle coming out of the stone quarry. And I made a comment to the engineer that the truck was coming out of the quarry. I guess five, ten seconds elapsed, and I said to the engineer again, I said, ‘John,’ I said, ‘it don’t look like that truck is going to stop.’ And the next thing I knew it was the point of impact.” ²²⁰ The brakeman stated that as they passed the Corriganville crossing and started making their approach to the 1 Rock Cut Quarry crossing, the train was traveling at a speed of 25 miles per hour, 2 the engine bell was ringing, the dual sealed beam headlights of the engine were “on high beam” and “our engineer blowed the standard railroad crossing signal for the * * * [Rock Cut] Quarry crossing * * * two longs, a short and a long.” He said the horn was still blowing at the time of the crash.

When asked if the train’s emergency braking system had been thrown into action, he said: “Yes, sir. * * * I would say a few seconds before impact or upon impact. Things was kind of exciting there for a few minutes.”' Upon further questioning, he stated that when lie first mentioned to the engineer that “the truck was coming out of the quarry,” the train was approximately 900 feet from the crossing and when he shouted to the engineer “it don’t look like that truck is going to stop,” the truck was on the westbound tracks and approaching the eastbound tracks upon which the train was traveling. He testified: “* * * I don’t know what the man was thinking of at the time of the accident * * * he just more or less come out of there as if the railroad tracks weren’t there.” The engineer confirmed the testimony of the brakeman that just prior to the accident the train was traveling at a speed of 25 miles per hour, the headlights were on high beam, the bell was ringing and he had given the appropriate crossing warning signal — “Two long blasts, a short blast and a long blast of the engine whistle” — which was “still being sounded at the time of the impact.” He stated that his position in the locomotive cab was on the right while the brakeman sat on the left; and that because of the protruding “snub nose” of the locomotive, his vision to the left was limited as the train proceeded down the tracks. He explained that the crossing was in plain .view until he got within about 75 feet and from that point to the crossing he could not see anything approaching from the left.

He saw the truck for the first time as it was “crossing the westbound track onto my ²²¹ track.” The train was approximately “sixty, seventy feet” away from the crossing. He activated the emergency brake system “about the time we made contact, possibly a second before or a second afterwards, or right at the time." In contending that the railroad was guilty of primary negligence, the appellants point to the fact, conceded by the appellees, that it had not complied with the Maryland statute (Code, Art. 23, § 205) which requires a railroad “to erect at all points where its road shall cross any public road * * * a sign with large and distinct letters placed thereon, to give notice of the proximity of the railroad, and warn persons of the necessity of looking out for the cars; * * A representative of the B. & O. Railroad stated that the company had failed to comply with the statute because it was unaware that the access road to the quarry had been taken into the county roads system some years before and had ceased to be a private way where no grade crossing warning signs or signals are required. The statute further provides that “any company neglecting or refusing to erect such sign shall be liable in damages for all injuries occurring to persons or property from such neglect or refusal.” This statute was the subject of review over a half century ago in Glick vs. Cumb. & W. Elec. Ry.

Co., 124 Md. 308 , a case strikingly similar, factually, to the case at bar. There, an automobile was struck by an electric railway car while being driven over an unposted railway crossing. There, as here, the driver had traversed the crossing shortly before the accident. In Glide, although the driver’s view of the tracks was obscured by a car barn, he failed to stop but did look and listen.

In the case at bar, the deceased’s view was unobstructed, he clearly failed to stop and, apparently, did not look or listen. In Glide, as here, it was contended that the jury should have been permitted to determine whether the accident might not have been avoided had the railway company erected a warning sign as required by the statute. In disposing of this contention, the Court said, at 318: “The evident purpose of that section [then Art. 23, Sec. 280, Code of 1912] was to provide for a ²²² notice to persons using the public roads of the proximity of the railroad track, and thus warn them of the necessity of looking out for cars. Here the plaintiff and his chauffeur knew of the proximity of the railway track, and did look and listen for a car.