Northern Central Ry. Co. v. State Ex Rel. Gilmore , 100 Md. 404 ( 1905 )

This is an appeal from a judgment of the Court of Common Pleas of Baltimore City in favor of the equitable appellee for damages for the death of his son as the result of an accident at a railway crossing. There is but one bill of exceptions in the record and that is from the Court's rulings on the prayers.

The evidence as to the locus in quo of the accident and of the situation of the parties involved in it, down to a few minutes before its occurrence, is uncontradicted, but as to the circumstances of the accident itself there is the most positive conflict of testimony. The accident occurred at the intersection of Eastern avenue, which runs east and and west, and the tracks of the appellant, which run north and south, in the bed of Ninth street. At that point Eastern avenue is seventy feet wide and Ninth street, on which the railroad tracks run, is one hundred feet wide. There are two main tracks of the railroad in the middle of Ninth street and there are two freight tracks to the west of the main ones, making in all four tracks occupying about forty feet in width of the bed of the street. On each side of this set of tracks there is a pair of safety gates, across the bed of Eastern avenue, which are operated from a watch box at the south end of the gates on the east side of the tracks. Anyone standing on the westernmost of the four tracks at its intersection with Eastern avenue has a clear view southerly for a mile, if no cars are on that track. At the time of the accident a row of box cars standing on that track and extending north to the line of the south side of Eastern avenue greatly shortened the view southerly, but even then by leaning forward or taking a step or two easterly the full length of the view would have been restored.

On the day of the accident John Gilmore, aged eighteen years, the son of the equitable plaintiff was engaged in driving a one-horse coal cart. About two o'clock in the day while he was going easterly on Eastern ave. across the railroad tracks with his cart loaded with a ton of coal, the cart was struck on the south side by one of the appellants' engines going north and thrown upon his feet, and such injuries were inflicted upon him that he died therefrom. The accounts as to the precise method of the occurrence of the collision between the engine and the cart are very conflicting.

Thomas Kenny testified that he was standing in the doorway of his residence at the northeast corner of Eastern avenue and Ninth street at the time of the accident and saw it happen. He said that Gilmore riding upon his cart and immediately followed by a similar cart, was going east on Eastern avenue and came to the gates on the west side of the tracks and found them down. After a few minutes the gateman, who was on the east side of the tracks, raised the gates and beckoned for the carts to come over the crossing and that Gilmore thereupon jumped down from his cart, took his horse by the head on the north side and started to cross the tracks. When crossing the second track the cart was struck on the south side by the appellant's engine and pushed over on to the boy's feet. The witness said that he standing in his doorway, saw the smoke and smoke stack of the engine over the box cars but could not see the engine before it came out from behind the cars, nor in his opinion could the boy who was injured see the engine from his position leading his horse. Witness heard no bell rung nor signal given from the engine as it approached and felt sure that from the position he occupied he could have heard the bell if it had rung. He was standing only about twenty feet from the cart when it was halted by the western gate being down.

Henry Dean, the driver of the second cart, corroborated Kenny's testimony as to the facts throughout and said that he heard no bell rung or whistle blown from the engine. Charles Miller who was present at the time of the accident also corroborated Kenny's tesitmony as to all of the facts of the occurrence except that he does not mention the circumstance that Gilmore was riding on the cart as he first approached the crossing, nor does he say anything pro or con in reference to signals from the engine as it approached.

Henry Ruth, a cart driver, testified that he was familiar with the crossing and that he was on the spot at the time of the accident. That by reason of the condition of the streets at the crossing it was necessary for the driver of a loaded coal cart to get down and take his horse by the head when crossing the tracks. "That the engine didn't ring any bell 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 gate-keeper tried to make him come back, it had him dead then and he could not get out of the way." The witness was standing by Mr. Kenny's saloon and saw Kenny standing in the door.

On the other hand James McGinness testified for the defendant that he was an eye witness of the accident. That as Gilmore came down Eastern avenue toward the railroad crossing he was beating the horse and causing it to plunge violently and just as he got to the crossing the trace or something snapped and the horse went out of the harness, the boy got down from the cart and spent about five minutes fixing the harness, in the meatime the witness heard the bell of the east safety-gate ring as that gate came down and that the western gate against the boy (Gilmore) also came down and the gate-keeper was growling at the boy who began to beat his horse again and it gave a lunge and just then the engine came along like a flash and struck the cart.

The engineer, fireman, a conductor and two brakemen all of whom were on the engine testified in substance that it was coming north on the second track at a speed of about five miles an hour with its bell ringing when the first they saw of the horse it jumped right in front of the engine and, although every effort was made to stop the latter, it struck the cart and shoved it six or seven feet before coming to a standstill. The engineer testified that as he approached the crossing he was standing in his proper position on the right hand side of the engine in full sight of the gateman and received no warning or danger signal from him.

The gate-keeper testified that he saw the boy coming down Eastern avenue beating the horse and driving recklessly and that when he first saw the engine it was about 600 feet away and at that time the cart was under the gate on the west side of the tracks with the horse's front feet standing between the two rails of the west track. The witness could not put down the west gates because the cart was under them and he might have prevented its backing out. He put down the east gates and called to Gilmore to back out of there but got no answer or attention from him; Gilmore got off his cart to look at his harness which was out of order. By the time he got the harness fixed the engine which was coming on all the time was within 25 or 30 feet away when the horse made a plunge from the west track to the one on which the engine was approaching and that was the last moment he saw the horse as the engine got between it and him. He had seen the horse continuously up to that time. The bell on the engine was ringing as it came up the track. The witness, when the boy refused to back off the tracks, called out to him "as long as you have been staying there that long damn it stay another half hour till the engine gets past," but he paid no attention to the call.

The plaintiff offered three prayers all of which were granted. These prayers were such as have repeatedly received the sanction of this Court. In fact the appellant did not on its brief or in the argument of the case object to the form of these prayers but insisted on its special exception to the first one on the ground that there was no legally sufficient evidence that any negligence on its part had caused the injury complained of.

If the testimony was true of the witnesses who swore that they saw Gilmore wait outside the western gate until the gate-keeper raised the gate and beckoned to him to come across the tracks and that he then took his horse by the head and started to obey the invitation of the gate-keeper and was struck by the engine and injured before he could cross the second track there was evidence from which the jury were entitled to believe that the defendant was guilty of negligence causing the injury. We have often held it to be the duty under ordinary circumstances of a person about to cross the tracks of a steam railway to look and listen for approaching trains and, if his view be obscured, to stop, look and listen, but here the circumstances testified to by many witnesses were special. According to these witnesses the boy on nearing the tracks respected the danger signal of the closed gates and stopped his cart until the gates were opened by the man in charge of them who beckoned him to come across. He then went to his horse's head and started to lead him across but was struck by the engine before he had gotten half way over. The gateman himself testified that the engine as it approached the crossing was in his sight for 600 feet and until it struck the cart. He gave no signal to the engineer to stop and, if the plaintiffs witnesses are to be believed, he invited the boy to cross the tracks. We cannot say under these circumstances that there was no legally sufficient evidence of negligence on the part of the defendant or its agents causing the injury. In the B. O.R.R. v. Stumpf, 97 Md. 94, in discussing the significance of open safety gates at railroad crossings it was said by this Court: "InNorth Eastern R.W. v. Wanless, 7 English and Irish Appeals 12, LORD CAIRNS held where it was the duty of the railway to keep the gates closed when any train is approaching, that the fact that they were open "amounted to a statement and notice to the public that the line at that time was safe for crossing, and was evidence of negligence to go to the jury;" and the same was held in Stapley v. London and Brighton Ry. Co., L.R., 1 Exch. 21; and in Lunt v. London and Southwestern Ry. Co., L.R., 1 Q.B. 277. In the last case, LORD BLACKBURN observed: "It could make no difference whether the gate-keeper expresses that the road is safe, by opening that gate, or by word or gestures." This is the view held in the following cases in this country. Grand TrunkRailway Co. v. Ives, 144 U.S. 408; Dolan v. Del. and HudsonCanal Co., 71 N.Y. 288; Glushing v. Sharp, 96 N.Y. 667;Palmer v. N.Y. Cent. R.R., 112 N.Y. 234; Chicago and RockIsland R.R. Co. v. Clough, 134 Ill. 586; Rhode v. Chicagoand North Western R.R., 86 Wis. 312; Evans v. Lake Shore andMich. Sou. R.R., 88 Mich. 442; Wilson v. N.Y. and N.H.R.R., 29 Atl. Rep. 258, and in many other cases which might be cited. In Glushing v. Sharp, supra, the Court said: "The open gate was a substantial assurance of safety, just as significant as if the gateman had beckoned or invited him to come on, and thatan ordinarily prudent man would not be influenced by it, is against all human experience."

In Stumpf's case the injured party testified that he had looked and listened for trains as he approached the open gate and the railroad crossing. In the present case by granting the defendant's fifth prayer as modified by it the Court instructed the jury. "That the fact that the defendant had placed safety gates at the crossing in question and stationed a watchman there in charge of the same, did not relieve the deceased of the duty of looking and listening for approaching trains as he approached and went over the crossing, and if the jury shall believe from the evidence that if the deceased had so looked and listened, he would have seen or heard defendant's engines in time by the exercise of ordinary care to avoid the injury, the plaintiff is not entitled to recover, and the verdict must be for the defendant, even though the jury shall find that the gates were open and the watchman made some motion which deceased may have interpreted as an invitation to continue across." The defendant thus had the benefit of an instruction to the jury that the presence of the gates and watchman did not relieve the deceased of the duty of using his own senses to discover the presence of danger as he approached and crossed the tracks.

The Court further by granting the defendant's sixth, seventh and eighth prayers instructed the jury to find a verdict in its favor if they found from the evidence, either that the deceased by his own want of ordinary care contributed in any degree to the happening of his injury — or if while he was in a place of safety the gateman warned him by voice or gesture not to attempt to cross and that he in disregard of such warning kept on across the track and was injured in doing so — or that he stopped his horse and cart on the tracks for the purpose of mending or rearranging the harness, and that he could have done this in a place of safety by driving or leading his horse forward off the tracks or backing him off of them and that he failed to escape injury because of his so stopping on the track to care for the harness. The Court also by granting the defendant's ninth prayer after having modified it instructed the jury that the testimony of witnesses that they did not hear the bell of the engine ring as it approached the crossing is not entitled to be regarded by the jury as of as great probative value as is the positive affirmative evidence that it was so rung.

The defendant had asked the Court by its rejected ninth prayer to charge the jury that 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 Balto. Potomac R.R. v. Roming, 96 Md. 67, as authority for their contention in that respect. That is pushing the doctrine ofRoming's case further than it was intended by us to go. In that case the only evidence of any negligence on the part of the defendant was the testimony of two persons who resided a short distance away from the station that they heard at their residence no whistle or bell from the engine prior to the danger signal which came almost at the same time with the crash of the collision, as over against the distinct and circumstantial evidence of the engineer and 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. Under all of the circumstances of that case we did not think that the failure of the two persons, who were not immediately at the station where the accident occurred, to hear the signals was sufficient of itself to send the case to the jury. We do not regard the present case as a parallel one to Roming's case.

The defendant's first prayer asked the Court to take the case from the jury for want of legally sufficient evidence of any negligence of the defendant or its agents which caused the injury complained of. Its second, third and fourth prayers assert the proposition that by the uncontradicted evidence that the deceased was guilty of contributory negligence and therefore the verdict must be for the defendant.

We do not deem it necessary after what we have already said in reference to the evidence appearing in the record to discuss these four rejected prayers of the defendant at length. In view of the character of the evidence we do not think the Court would have been justified in withholding the case from the jury. The prayers which were granted in sending it to them correctly presented the law of the case. The Court committed no error in rejecting the prayers which it refused to grant, or in modifying as it did the defendant's fifth and ninth prayers before granting them.

The judgment appealed from must be affirmed.

Judgment affirmed with costs.

(Decided January 13th, 1905.)