Washington, Baltimore & Annapolis Railroad v. State ex rel. Goodwin

Ajokins, J., delivered the opinion of the Court. This is a suit under Lord Campbell’s Act, by a father', Charles M. Goodwin, to recover for alleged negligent killing of his son, Charles B. Goodwin, by the Washington, Baltimore and Annapolis Electric Railroad Cbmp-any. From a judgment in favor of plaintiff, the defendant appealed. For the purposes of this opinion the facts may be stated very briefly.

At about two o’clock P. M. of the 18th day of "November, 1918, Charles B. Goodwin, son of the appellee, after leaving his place of employment at Camp Meade, walked to- the crossing known as Kelly’s Crossing, being a public highway, at which there was a flag station of the railroad company, for the purpose of going to Baltimore by one of the company’s cars. This crossing runs approximately north and south, and the two tracks of the company run approximately east and west, the south track being the eastb-ound track from Camp Meade to Baltimore and the north track being the westbound track. The width of each of these tracks was four ¹¹⁷ feet eight indies, and of the space between about five feet. The deceased approached these tracks from the north and crossed over both of them either to, or over, the south rail of the east-bound track.

He inquired of several people about trains for Baltimore, and was told one would he along in about a minute. He was then at the place where people were accustomed to stand while waiting for trains for Baltimore. For some unexplained reason, almost immediately after getting this information, he retraced his steps, and just before reaching the south rail of the westbound track, he was struck by one of tbe hand holds on the side of the motor of the westbound train, and died almost instantly. One witness testified that the train of four or five cars which hit Goodwin was, in her estimation, running at the rate of from twenty-five to thirty miles an hour.

There was also testimony tending to show that no signal of the approach of the train w'as given by whistle or hell, or by the flagman; and tbe speed of the train and the failure to give proper signals are alleged as- tbe acts of negligence on the part of the defendant which caused the accident. There are nine bills of exception, of which eight are to rulings on evidence and one to the ruling on the prayers. Tn the view we take of this ease it will he necessary to consider only the refusal of the court to grant defendant’s third prayer, which asked for an instructed verdict in favor of the defendant on the ground of contributory negligence. This prayer should have been granted.

It was demonstrated by photographs that-, from the position of safety in which Charles B. Goodwin was before he came in contact with the motor of defendant’s train, to- the point in the curve in the tracks where a train approaching from the east could first he seen from the position occupied by Goodwin, was at least seven hundred feet. The number of poles appears clearly in the photograph and there was no dispute about the distance between these poles, Tt is true, several witnesses gave different estimates of this distance, less than seven hundred feet, hut none of them was ¹¹⁸ willing to swear that it might not have been that far, and all of them admitted that the figures they gave were little more than guesses, without any actual measurement. There was no attempt on the part of plaintiff to show that the photographs did not fairly represent conditions at that place, or that the distance between the poles was less than the measured distance proved by the defendant. Indeed the plaintiff failed absolutely to offer any proof of the distance by actual measurement, notwithstanding the length of time that elapsed between the date of the accident and the time of the last trial and the abundant opportunity to obtain the exact distance.

And this, too, after the plaintiff had notice by testimony given at a former trial that defendant’s proof showed a greater distance than the estimates given by plaintiff’s witnesses. With such a showing, there could not be room for a difference of opinion among reasonable men that the decedent was guilty of negligence of the grossest kind, and that such negligence directly contributed to the accident. If he used his eyes he must have seen the approaching train in time to avoid danger, and if he listened he must have heard it. If he knew of the approach of the train, and stood near enough to the track to be hit, he was equally guilty of contributory negligence.

McNab v. United Railways Co., 94 Md. 724 ; Glick