Western Maryland Railway Co. v. Myers

Bond, C. J., delivered the opinion of the Court. The appellee, plaintiff below, recovered a judgment against the appellant for damages from personal injuries alleged to have been sustained in a collision, at a grade crossing in Hagerstown, between a locomotive and an automobile in which tlie plaintiff was riding. Negligence on the part of the defendant causing the collision was the ground of recovery, and the trial court’s refusal to direct a verdict for the defendant because of lack of legally sufficient evidence to prove the negligence is the chief subject of contention in this court. Review is sought, too, of rulings on other prayers for instructions to the jury.

The crossing was that of Potomac Avenue in Hagerstown, a highway running in northerly and southerly directions; and there are two main railroad tracks extending across the street, for eastbound and westbound traffic respectively, and a third track for a. siding gradually curving away from the other two on the southerly side. On the night of December 19th, 1930, the plaintiff, with two other young men, Burger and Weibel, drove up to the crossing, from the south in a small, single-seated automobile, owned and driven by Burger. The automobile was one with an open body, and all its curtains wTere attached to close the ⁵³⁶ occupants in from the cold. They intended to stop on the other, or northern, side of the crossing to let out Myers, the plaintiff, to go to his home in the second house beyond.

Burger, the driver, who was familiar with the crossing, testified that he put on his brakes lightly as he approached it, and reduced his speed to a rate of about ten or eleven miles an hour when he was twenty or twenty-five feet south of the siding, which was the track nearest him. At that time the locomotive was nearing the crossing, backing, on the westbound track, the one farthest from the oncoming automobile. It was therefore moving from Burger’s right toward his left. Other automobiles crossed before the locomotive, reached the crossing, and one other*, coming from the north, stopped to await the passing of the locomotive.

The driver of this automobile last mentioned estimated the speed of the locomotive at about that of a man walking, while other witnesses estimated it at from six to ten miles an hour. A vacant lot of ground lies to the east and south of the tracks, or on the right of Burger’s approaching- automobile, and affords a view over the tracks to the east, unbroken except for the interference of cars that may be on the siding; and on this night there was a box car standing on the siding about ten or fifteen feet from the¡ edge of the street, to the right of the automobile. On the left-hand side of the street, opposite to the position of the box car, a city light was suspended on an arm extending out from a high pole, but witnesses for the plaintiff testified that its light did not shine across so as to make objects beyond the street on the other side visible. A crossing signal bell stands on the northerly side of the three tracks, and there was a bell on the locomotive, and a light of the ordinary headlight type mounted on the rear of its tender, arranged to focus its beam on the track far ahead, but showing a dimmer light nearby, and on the sides.

Burger testified that before he crossed he looked toward the trácks on his right, birt saw nothing at all; nothing but darkness. He said he did not see any engine light, though he looked, and did not hear the crossing bell, or bell ⁵³⁷ on the engine, though he listened. He did not stop or open his curtains to look and listen, but said his curtains and his motion did not interfere with his seeing and hearing. Weibel, in the automobile with him, and with the plaintiff, said he too failed to see any light from the engine, or to hear any bell.

Both of these witnesses added, however, that they did not know whether the bells were ringing or not, and the plaintiff himself adduced the evidence of two: witnesses, Kinch, the driver of the automobile coming from the north and which stopped at the1 tracks, and a Mrs. Ritz, who lived beside the track nearby, h> the effect that both bells were ringing as the locomotive crossed, and that the light on the tender was showing, but .seemed dim. Kinch testified that he saw the headlight when it was sixty or eighty feet from the crossing, and that it was the light that made him stop. He did not hear the crossing bell until he put his windows down, and he distinctly recalled having heard it then. Myers testified that he retained no recollection of events leading up' to the collision.

Witnesses called by the defendant testified that all signals were given, but that Burger’s automobile was driven rapidly over the crossing in disregard of the danger. On behalf of the plaintiff it is contended that, from the testimony of Burger and Weibel, that they failed to hear the signal bells or see the engine light, it was permissible for a jury to find that these several signals were negligently omitted; and reference is made to decisions that failure of one looking and listening to perceive such signals affords affirmative evidence that none were given. State, use of Chairs, v. Norfolk & Western Ry, Co., 151 Md. 679, 686 , 135 A. 827 ; State, use of Pachmayr, v. Balto. & O. R. Co., 157 Md. 256, 261 , 145 A. 611 . But the situation presented by the evidence recited here differs materially from that supposed in this argument, and that found in the cases referred to.

Here the failure of the two witnesses of the plaintiff to hear the bell signals did not, according to their statements, indicate to them that the signals: were not sounded. Although they knew the circumstances and the possibilities ⁵³⁸ better than a jury could know them, they expressed themselves as unable to draw the inference which the plaintiff would have the jury draw from their statements at second hand. And in addition to that, the plaintiff produced direct evidence that the signals were in fact given, both by light and by bells. Drawing from that state of evidence an inference that the signals were not given would seem to be a