Baltimore & Ohio Railroad v. State Ex Rel. Roming , 96 Md. 67 ( 1902 )

The equitable appellees are the widow and children of John C. Roming who was struck and killed by a passenger train of the appellant at a grade crossing near Annapolis Junction. The suit was brought for their use to recover damages for the loss of his life which the declaration alleged was caused by the negligence of the servants of the appellant. The verdict and judgment were against the defendant and it appealed.

There are several exceptions in the record to the rulings of the Court below, but the substantial issue in the case is presented by the rejection of the defendant's first and second prayers offered at the close of the evidence. The first prayer asked the Court to take the case from the jury for want of evidence legally sufficient to show that Roming's death had been directly caused by the negligence of the defendant or its agents. The second prayer instructed the jury to find for the defendant, because by the undisputed evidence the negligence of Roming directly contributed to the accident which caused his death.

A plat of the location of the accident made from actual measurements was used by agreement, as if it were part of the record, at the hearing of the case. From this plat and the testimony of the witness, Zepp, who made the measurements it appears that at the crossing where the accident occurred and for some distance on each side of it the railroad tracks run east and west by a uniform curve northerly of thirty minutes. The railroad has two tracks and there is a switch on the south side of the main tracks thus making three tracks in all which the public road crosses at grade. Annapolis Junction station is a little over one hundred yards west of the crossing. At the distance of nearly two hundred yards east of the crossing a county road passes over the railroad by an overhead bridge of a single span having a clear width of fifty feet between its abutments. From the crossing to the bridge the view is unobstructed, but east of the bridge the railroad runs through a cut of such depth as to conceal a train of cars from the view of a person standing at the crossing, except in so far as the curve in the tracks permits it to be seen by looking underneath the bridge. The railroad company voluntarily maintains a gate at the crossing which is operated by a gateman during the day, but is left open at night.

The public road by which Roming was attempting to cross the tracks when he was killed runs a short distance south of and nearly parallel to the railroad until it reaches the crossing where it turns north by almost a right angle and crosses the tracks. Roming at the time of the accident had been going east on this road until he reached the crossing when he turned north across the railroad. The train by which he was struck was coming west toward him on its way from Baltimore to Washington.

The witness, Zepp, testified that by actual measurement the distance from the grade crossing to the overhead bridge was 575 feet. He further testified that in approaching the crossing from the south by the road on which Roming travelled, he could, when 50 feet south of the centre line between the tracks, by looking easterly under the overhead bridge, see a man standing in the centre of the west-bound track 1,275 feet distant, that when 45 feet south of the centre of the tracks he could see him 1,245 feet off, that when 35 feet south of the centre of the tracks he could see him 1,150 feet off, and when 25 feet south of the centre line of the tracks he could see him 1,115 feet off. He further testified, though not from actual measurement, that he was positive that one standing midway between the tracks at the crossing could see the west-bound track at least 250 feet beyond the bridge and that when standing there he had in fact seen trains approaching from the east at that distance beyond the bridge. There was no direct contradiction of this testimony although other witnesses expressed the opinion that the distance from the crossing to the bridge was somewhat less than Zepp's measurement made it, and that a west-bound train could not be seen by one standing at the crossing until it reached the bridge.

The accident by which Roming lost his life occurred at about quarter past ten o'clock at night. No one saw the actual collision between the train and the wagon in which he was riding. J.W. Furley the engineer of the train testified that as he approached the crossing he was standing in his usual place in the right hand side of the engine cab looking forward and when, within an engine length of the crossing, he saw a horse trying to cross the track, and that he at once pulled the whistle with one hand and applied the brake with the other hand. That he stopped the train, five cars and the engine, within its own length and went forward and found Roming under the tender which had dragged him along after he was struck. That the train was running from fifteen to eighteen miles an hour at the time and nothing could have been done to save Roming after the horse was seen.

The engineer further testified that when approaching Annapolis Junction from the east he is in the habit of blowing a long blast for the block signal at the station when about one hundred yards east of the bridge. Then as he goes into the cut toward the bridge he sees the block signal and responds at once by two short blasts of the whistle to notify the signal man that he has seen the signal. That he blew all of these blasts of his whistle at the usual places on the night of the accident, and also blew the danger signal as soon as possible after seeing the horse on the track in front of him. That out in the open country his train runs fifty to sixty miles an hour, but as he approached the junction on that night he had his train somewhat under control as he expected to be signalled to stop there for passengers and was looking out for that signal as well as for the block signal.

The fireman and the conductor on the train and the night operator at the signal tower all corroborated the engineer's testimony as to blowing the long blast of his whistle before reaching the bridge and subsequently the two short blasts in response to the block signal. Bertha McCauley who was waiting at the station, heard the long blast of the whistle when, as she said, the engine was coming under the bridge and also the short blasts which followed. The fireman also testified that he began to ring the bell at the sounding of the long blast of the whistle and continued to ring it as they approached the station.

There is no contradiction of this testimony as to the giving of the usual signals from the train as it approached the crossing except that of David Sykes and his son Philip, who lived a short distance west of the station and they only testified that they heard no whistle or bell prior to the danger signal which they said came simultaneously with the crash of the collision. Bertha McCauley also said that "she never noticed the bell."

Charles A. Murphy testified that Roming called at his mill about three o'clock on the afternoon of the accident and that "He was under the influence of liquor to a certain extent, so any person could easily tell it, but not drunk enough not to know that he wanted to buy chop and to pay for it." George Diven who keeps a saloon at Laurel, testified that Roming was at his saloon on that afternoon and left about seven o'clock, that he drank six glasses of beer while there and took away a dozen beers in his wagon, but that "he seemed to be able to take care of himself and knew what he was doing when he left." Richard Whitehead testified that Roming on that evening drove him from Diven's saloon to his home about half way between Laurel and Annapolis Junction and remained there until half-past eight o'clock and further said "It looked to me like Roming was able to take care of himself, he was sober then I suppose."

Nothing further was seen of Roming by any of the witnesses until about ten o'clock or shortly after when he was seen by David Sykes and his son Philip to pass their house in his wagon going east on the public road which crosses the railroad at the place of the accident. The Skyes house stands a short distance west of the railroad station. Roming passed the house at a gentle trot and he was seen by Philip Sykes until his wagon turned north into the railroad crossing and got nearly on the track, not more than four yards distant, when it was concealed from view by a coal bin standing there. This witness further testified that when he thus lost sight of the end of Roming's wagon it was "almost at a standstill like" and that although the witness was then looking east right down toward the overhead bridge and the cut beyond it no train whatever was in sight.

It further appears from the uncontradicted testimony that Roming lived near Annapolis Junction and often came there and was familiar with the whole local situation and that he was a strong and healthy young man and had good sight and hearing.

The mutual and reciprocal obligations of railroad companies and travellers about to cross their tracks on public highways have been clearly defined by numerous decisions in this State. The recognized doctrine upon the subject was well stated in P., W. B.R.R. v. Hoagland, 66 Md. 160-161 as follows: "The railroad trains from the nature of things have the precedence of passing the crossing 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 their approach and to take all reasonable precaution in view of the nature of the crossings to avoid collision. Failure in the strict performance of these duties to the public, whereby injury is inflicted upon individuals will subject the company to liability to respond in damages to the injured party. But while such is the plain duty of the managers of railroad trains it is equally the duty of those approaching the crossings as travellers upon highways, to approach with care, and the more difficult and dangerous the crossing the greater the care required. The rule is now firmly established in this State as it is elsewhere that it is negligence per se for any person to attempt to cross tracks of a railroad without first looking and listening for approaching trains; and if the track in both directions is not fully in view in the immediate approach to the point of intersection of the roads due care would require that the party wishing to cross the railroad track should stop, look and listen before attempting to cross. Especially is this required where a party is approaching such crossing in a vehicle the noise from which may prevent the approach of a train being heard. And if a party neglect these necessary precautions and receives injury by collision with a passing train which might have been seen if he had looked or heard if he had listened he will be presumed to have contributed by his own negligence to the occurrence of the accident; and unless such presumption be repelled he will not be entitled to recover for any injury he may have sustained. This is the established rule and one that the Courts ought not to relax as its enforcement is necessary as well for the safety of those who travel in railroad trains as those who travel on the common highways."

Hoagland's case has been cited with approval and relied on in numerous cases and has been affirmed as recently as in Holden'scase, 93 Md. 420, and McNab's case, 94 Md. 726. In Watson'scase, 91 Md. 354, the Court said it will not do for tha plaintiff to say that he looked and did not see or listened and did not hear the train when the facts of the case show that if he had looked or listened with the requisite care or caution he must have seen or heard it.

Tested by these authorities it must be presumed that Roming's own negligence directly contributed to the accident which caused his death. The uncontradicted evidence shows that when he had turned into the crossing and almost reached the tracks no train was in sight. When the train did in fact come he could have seen the headlight of the locomotive at a distance sufficiently great to have enabled him to avoid the collision by the use of reasonable and ordinary care and prudence. The usual blasts of the whistle were sounded as the train came up and further than that it is almost incredible that a heavy train approaching, before its speed was slackened, at fifty or sixty miles an hour did not make noise enough in the quiet of the night in the country to have been heard by him if he had listened for it with proper caution. Whether he loitered upon the crossing after he passed out of sight of the witness, Sykes, or whether the condition in which his free indulgence in beer left him so blunted and confused his senses as to deprive him of the ability to exercise that measure of care which his situation demanded, cannot now be told and must remain a matter of speculation. The appellees, not having been able to produce any explanation for his failure to avoid the train when by the exercise of proper care he might have seen or heard it in time to save himself, they cannot recover for any injury they may have sustained from his death. If he had survived he would have been unable to recover under these circumstances for any injury caused by this collision and as their right is, under the statute, no greater than his they suffer from the same disability.

The record does not in our opinion furnish legally sufficient evidence of any negligence of the appellant directly contributing to the collision by which Roming lost his life, but if it did contain such evidence it is apparent from all of the facts of the case that he is chargeable with contributory negligence of such character as to preclude the right of the appellees to recover in this suit. The defendant's first and second prayers should have been granted and for the error of the Circuit Court in rejecting them the judgment appealed from must be reversed; and as it is apparent that the appellees are not entitled to recover no new trial will be awarded.

Judgment reversed with costs without awarding a new trial.

(Decided December 3rd, 1902.)