United Railways & Electric Co. v. Crain

Pattison, J., delivered the opinion of the Court. This is an action brought by the appellee, plaintiff below, against the appellant company to' recover for personal injuries received by the plaintiff in consequence of a collision between the car of the defendant and the automobile in which the plaintiff was riding as a passenger, resulting, as it is alleged, from the negligence of the defendant in the operation and management of its car. The injury was received at a crossing of a public highway in Baltimore county known as the North Point Road. The record discloses that Harvey L. Goodman, a resident of Baltimore City, invited the plaintiff and others to ride with him in his automobile.

The party consisted of Goodman, his wife, Miss Akehurst, Adolph Prutz and the plain ³⁴⁰ tiff'. The three women sat upon the bade seat and the two men upon the front seat of the automobile. Goodman, the owner of the automobile, and who was also a competent chauffeur, had the control and management of it on the occasion of the accident. Neither Goodman nor the plaintiff was familiar with the load.

Goodman had been upon it once before about a year prior to the accident and recalled that the defendant’s road crossed it, but did not know the exact point. A short while before reaching the crossing, when about three-fourths of a mile from it, Goodman testified, “I made mention to Mr. Prutz about this crossing being in the vicinity somewhere, I didn’t ls;now just where, but we should look out, keep looking out, that we did not get into any danger of an approaching car; so we both were on the lookout, I will say possibly threer-fourths of a mile, may be more than that, before we got to it, and we watched as close as we could watch for the railroad,” but they did- not see the track until .they were practically upon it. ' As Goodman expresses it, “At such time I heard the rumbling of a car coming at a- high rate of speed, * * “ and I looked and saw the car practically within a few feet of me, and the only thing I could do, there was nothing more, the thought came to my mind to turn the wheel as short as possible and run with the car,” This he attempted to do, hoping, as he said, to avoid a collision, or failing in this, that the car would so strike the automobile as to- give it what he termed a “side swipe,” and thereby avoid the danger of those in the automfobile getting under the wheels of the car. He partially made the turn, but did not avoid the collision. The left wheel of the automobile came in contact with the front car at or near its front truck, as stated by plaintiff’s witnesses, or at the middle of the car, as stated by the defendant’s witnesses, which resulted in turning over the automobile and catching the plaintiff under it, inflicting upon her the injuries complained of. ³⁴¹ At the time of the accident the automobile was moving southward on said public road, and the defendant’s train, consisting of two cars, was moving westward towards the city.

The road of the defendant company crosses the highway at nearly right angles. Its tracks are laid with “T” rails spiked to crossties, with gravel and crushed stone ballast, which at the crossing was covered with dirt, bringing the surface between the rails to a level with the road. The plaintiff’s witnesses testified, and they were not contradicted, that the white sand of the road and the shell dust covering the space between the rails made it difficult to- observe the crossing, and for this reason could not see it until they got practically upon it. There is on the east side of the highway, both on the north and south sides of the railroad, at the crossing, a woods which extends within a few feet of the said public highway and also extends to the right of way of defendant’s road, and on the north side of the crossing the land has an elevation of three or four feet above the bed of both the highway and the railroad, and a car approaching the said public road from the east cannot he seen from said highway until a point is reached thereon within a few feet of the crossing.

This fact is shown by the testimony of the motorman of the car, who testified, “When I got about twelve feet from the hTorth Point Road, I could see about twelve or fifteen feet upon the RTorth Point Road, and I seen the automobile coming at a high rate of speed. I saw lie would hit me and I tried to stop as soon as I could,” and with the use of air brakes and the sand lever he stopped the car at a distance of one hundred and twenty .o one hundred and twenty-five feet from the west side of the 'public road. It would, therefore, follow that Goodman, in the automobile, at a point twelve or fifteen feet from the track could have seen only twelve or fifteen feet eastward up the railroad. But upon the westward side of the highway the country is open, sloping towards the west, and the poles fifteen to eighteen inches in diameter, bearing the feed, trol ³⁴² ley and span wires, located on each side of the track at a distance of one hundred to one hundred and ten feet apart, may be readily seen from the highway, extending for a distance of about a half mile to the westward.

As stated by the defendant in his brief, the “special exceptions to the plaintiff’s first and second prayers and the defendant’s first, second, third, fourth, fifth and sixth prayers, present the question of whether there was any legally sufficient evidence of causal negligence on the part of the defendant which resulted in the accident of which the plaintiffs complain.” The defendant contends “that the evidence shows that the recklessness of the driver was the only negligent act having any causal connection with the accident, and that there is no evidence that the accident was caused by any negligence on the part of the defendant or its employees.” The evidence shows that the crossing was one of more than ordinary danger, and therefore required the exercise of more than ordinary care, both on the part of parties attempting to cross the tracks of the railroad, and of the managers of passing trains. This duty is mutual and reciprocal, and not confined to one party only. The railroad trains, from the nature of things, have the precedence of passing the crossings of public ways unobstructed; but it is the duty of those directing the trains to be careful to give all proper and sufficient signals of them' approach, and to take all reasonable precaution, in view of the nature of the crossings, to avoid collision. Failure in the strict performance of this duty to the public whereby injury is inflicted upon individuals, will subject the company to liability to respond in damages to the injured party.

Philadelphia, Baltimore & Washington R. R. Co. v. Hogeland, 66 Md. 160 . The record in this case discloses no legally sufficient evidence of any negligent act of the defendant having any causal connection with the accident complained of unless it be that it ³⁴³ failed, to give the required signal of its approach to the crossing. The testimony of Anderson, the motorman, was that ho hrst blew the whistle at a point seventy-five feet oast of a private road that crosses the railroad three hundred and fifty feet, east of said public rgad; that he again blew the whistle at the green signal seventy-five feet at each of the crossing upon said public road, and that at each of such times he gave two short blasts. In speaking of the whistle he described it as a “screechy whistle” and made a loud noise.

William Webb, a passenger on defendant’s car, stated that he was seated in the front car and heard “two small, short; toots, a sort of toot, toot, as we were starting in through the woods; there is a little woods on both sides of the track just east of North Point Road.” Wilbert E. Parrill, another passenger in the rear car of the defendant, testified that he heard the whistle of the car just before reaching North Point Road, and upon looking out saw a green signal. He also heard the whistle blow several times before that, but did not exactly locate the places. Elizabeth Krupp, a little girl, and her companion, Elizabeth Erede Meyer, on the occasion of the accident were upon Ihe track of the defendant company at a point westward of the North Point Road; they were walking eastwardly upon the track, meeting the defendant’s car, counting the ties on the road, as they said, when they heard the whistle of the car some distance ahead of them, and before the car had reached North Point Road. It resulted in their getting off the track, but they still continued to walk beside it in the direction of the accident and saw it when it occurred.

William TIook, another passenger in the front car of the defendant, also> testified that “before they came to the crossing, the motorman blew his whistle, I took very particular notice to it, too.” Goodman, the owner and chauffeur in charge of the automobile, when, asked “Was there any whistle that was ³⁴⁴ sounded. ?” answered, “No whistles.” Ques.: “Is your hearing good or bad ?” Ans.: “It is good.” Adoplh Prutz, who was seated beside Goodman in the automobile, when asked: “Did you, or not, hear any sound or whistle?” replied, “No, sin, not until it got right on us and didn’t have much time to think.” Miss Akekurst, who was upon the back seat o>f the automobile, testified: “We never heard the car whistle and we never heard nothing until we saw one end of the car come from behind the trees.” Mrs. Goodman, who was also upon the back seat of the automobile, when asked: “Did you, or not, hear any whistle ?” replied, “I heard nothing at all.” , The plaintiff, Mrs. Crane, did not say whether she heard or did not hear the whistle. In the case of Foley v. N. Y. Cent. & Hudson River R. R. Co., 197 N. Y. 430 , vol. 18 A. & E. Annotated Cases, 631, “various employees of the defendant, some of whom were charged with a duty in respect thereto, testified positively that the bell operated automatically and that it rang constantly as the engine approached the crossing. Several wifi nesses sworn in behalf of the plaintiff for the purpose of establishing that it did not ring until after the accident and the witness in each case did testify that he did not hear the bell, ring before the accident. Upon further examination, however, such witness invariably testified, in substance, that he did not listen for the bell and that his attention was not in any way directed at. the time to the question whether it was or was not ringing, and also made it clear that he was in such n position that he probably must have heard the bell if it did ring.

Thus each witness at the close of his examination made it appear that his failure to hear the bell ring did not occur under such circumstances as to fairly indicate that it did not in fact ring.” Under these circumstances the evidence was regarded as insufficient. In the case of Culhane v. N. Y. Cent. & Hudson R. R. Co., 60 N. Y. 133 , the Court there said: “The two witnesses for ³⁴⁵ the plaintiff merely say they did not hear the bell, but they do not say that they listened or gave heed to the presence or absence of that signal. * * * As against positive, affirmative evidence by credible witnesses to the ringing of a bell or the sounding of a whistle, there must be something more than Tie testimony of one or more that they did not hear it, to authorize the submission of the question to the jury. It must appear that they were looking, watching and listening for it, that their attention was directed to the fact, so that the evidence will tend to some' extent to prove the negative. A mere “'1 did not hear” is entitled to no weight in the presence of affirmative evidence that the signal was given, and does not create a conflict of evidence justifying a submission of the question to the jury as one of fact.” In the case of Menard et al. v. Boston & Maine R. R. Co., 23 N. E. 214 , it is said, “A witness may be in any conceivable attitude of attention or inattention which will give his evidence value or leave it with little or no weight.

But where his position is such that the sound would have been likely to have attracted Ms attention if the bell had been rung, his failure to hear it, is some evidence that there was no ringing. In. 1he ease at bar there were six witnesses who testified that they heard no bell or whistle. All of these were in such positions that they easily might have heard if the signals had been given; and three of them were riding at great risk to their lives if they failed to notice such signals as they heard. These three would certainly be expected to attend carefully and to know whether there was any warning to apprise them of danger.

We are of opinion that the jury should have been permitted to consider all the evidence in the case upon the question whether the defendant failed to ring the bell or sound the whistle as required by law.” Tn the case of Balto. & Ohio R. R. Co. v. Roming, 98 Md. 67 , the only evidence of any negligence on the part of the defendant was the testimony of two persons, Sykes and Phillips, who resided a short distance away from the station, ¡hat they heard at their residence “no whistle or bell from the ³⁴⁶ engine prior to the danger signal which came simultaneously with the crash of the collision,” as over against the distinct and circumstantial evidence of the engineer and the fireman, and the operator in the block signal tower at the station that the customary signals of the approach of the train were-exchanged between.the engine, by whistling, and the tower, by moving the block signal, and that the bell was rung from the engine as usual. The Court there held that such testimony of the defendant’s alleged negligence was not sufficient to go to the jury. But it was not shown in that case that the attention of the witnesses Sykes and Phillips was in any way attracted tó the whistle or bell of the engine. They were not charged with any duties in respect thereto and were not at the time in any situation of danger in connection therewith, nor did the record disclose any reason they might have had for giving heed to signals of danger from the engine as it approached the crossing.

In the case of the Northern Central Ry. Co. v. Gilmore, 100 Md. 404 , the witness Kenny, who was standing in the-door of a saloon nearby, and Dean, a cart-driver, who was. also nearby at the time of the accident, testified they heard no bell rung or signal given from the engine as it approached the crossing, and Henry Kuth, another cart-driver, testified that “the engine didn’t rink any hell or blow any whistle-there; there was nothing at all done,, only after the boy was in danger and could not get out of it, the gatekeeper tried to malee him come back.” Against this was the evidence of the' engineer, fireman, conductor, gatekeeper and two brakemen who testified that the bell was ringing at such time. In that case the defendant asked the Court to instruct the-jury that “the testimony of witnesses that they did not hear the bell was not evidence that it was not rung and must be entirely disregarded by them,” and in their brief and argument the defendant’s counsel relied upon the. case of Balto. & Ohio R. R. Co. v. Roming, supra, as an authority for the granting’ of such instruction, but the Court in refusing- ³⁴⁷ die instruction asked for, said: “That is pushing the doctrine of Hominy’s Case further than it was intended by us to go.” It may be safely stated, from the above cited authorities and others, that where the attention of those testifying to a negative was not attracted to the occurrence which they say they did not see or hear, and where their situation was not such that they probably would have observed it, their testimony is not inconsistent with that of credible witnesses who wero in a situation favorable for observation and who testified affirmatively and positively to the occurrence’. Chicago, etc..

R. R. Co. v. Andrews (C. C. A.), 130 Red. Rep. 65. But if it be shown that the witness could have observed the signal, had it been given, and that his attention was attracted thereto because of a duty imposed upon him in connection therewith, or because of the known position of danger in which he was at the time placed, naturally suggesting that he, for his own safety and protection, should look and listen for the warning or signal of danger; or if it be shown from the facts and circumstances of the case that for any cause or reason his attention was attracted thereto and that he at such time was listening for the ringing of the bell or the sounding of the whistle the fact that he did not hear the signal is evidence sufficient