Union Railroad v. State ex rel. Steever

Irvinu, J., delivered the opinion of the Court. This case was before the Court in 70 Md., 69 , on the appeal of the present appellee, who then complained that the case had been erroneously taken from the jury. The case having been remanded for a new trial, the verdict was in favor of the plaintiff, and the defendants have appealed, because the Court below refused appellants’ third and fourth prayers. The facts are so fully stated in the former appeal they need not be recapitulated here.

The third prayer of the defendants, which appellants contend ought to have been granted, is as follows, viz: “If the jury shall believe, from the evidence, that the bell of the engine was ringing from the time it left Canton Junction until the accident happened, and that there was a light upon the lid of the tender, in the position described by the defendants’ witnesses, during that time, and that from a point on the turnpike, about six hundred and fifty feet east of the crossing, all the way to the crossing, one driving the turnpike could hear the bell and see the light, then the. plaintiff is not entitled to recover, and the verdict of the jury must he for the defendants.” ¹⁵⁸ The appellees object to this instruction, for the reason that it fails to require the jury to find, that the deceased did see and hear, and yet disregarded, these signals of warning. Appellees’ counsel further insist that if, in the abstract, the prayer is right, still there was no error in its rejection, because the first and Second prayers of the appellants which were granted, covered the whole case, and gave them the benefit of all deductions they could get from this prayer. Repeated decisions in this State have settled the law that in approaching a railroad crossing, it is the imperative duty, of persons designing and desiring to cross a railroad track at a crossing, to look and listen for a possibly approaching train. Pennsylvania Railroad Co. vs. State, use of McGirr, et al., 61 Md., 121 ; Balto. & Poto.

R. R. Co. vs. State, use of Stansbury, 54 Md., 656 ; State, use of Bacon vs. Balto. & Potomac R. R., 58 Md., 490 ; Maryland Central Railroad vs. Neubeur, 62 Md., 399 ; Phil., Wilm. & Balto. R. R. Co. vs. Hogeland, 66 Md., 149 ; Cumberland Valley Railroad Co. vs. Maugans, 61 Md., 61 . This prayer puts it to the jury to find whether the bell of the engine was ringing all the while it was approaching the crossing; and whether there was a light on the tender of the locomotive, and whether the bell could be heard and the light could be seen by one driving on the turnpike; and then instructs the jury that if there was such visible light, and such audible ringing of the bell, then the plaintiff could not recover. It is clear, if the deceased did hear the bell, or did see the approaching light of the train, and did disregard these signals of warning, he recklessly imperilled his life, and no recovery should be had.

In Neubeur’s Case, 62 Md., 399 , the law is thus stated: “They should in .all cases, before proceeding to cross, carefully look and listen, to ascertain whether a train is approaching; * * * and if ¹⁵⁹ the experiment is made, without such precaution, the party acts at his peril; * * and must be held to have so far contributed to his own misfortune as to preclude him the right to recover against the railroad company. ” We have seen that it was his duty to look and listen; and in the absence of proof whether he did observe this duty, we must presume that he did look and did listen; for if he did not, that omission would be fatal to the action. Supposing him, therefore, to be looking and listening, the only question submitted by this rejected prayer was, whether there was such light as he could see, and such bell ringing as he could hear; and if the jury found upon the proof that there was such light to be seen, and such bell to be heard, then contributory