Contino v. Baltimore & Annapolis R. Co.

• Decision Date: 18 June 1949
• Docket Number: Civ. No. 3927.
• Citation: 86 F. Supp. 634
• Parties: CONTINO et al. v. BALTIMORE & ANNAPOLIS R. CO. (REINDOLLAR et al., third-party defendant).
• Court: U.S. District Court — District of Maryland

86 F. Supp. 634

CONTINO et al. v. BALTIMORE & ANNAPOLIS R. CO. (REINDOLLAR et al., third-party defendant).

Civ. No. 3927.

United States District Court D. Maryland.

June 18, 1949.

J. Richard Wilkins, of Baltimore, Md., for plaintiff.

Marshall, All, Carey & Doub (of George Cochran Doub and Frank L. Fuller III), of Baltimore, Md., for Baltimore & Annapolis R. Co.

COLEMAN, Chief Judge.

This is a suit brought to recover damages for injury to a motor truck with trailer owned and operated by plaintiffs, caused by its colliding with a bridge in Anne Arundel County, Maryland, over which run the tracks of the Baltimore & Annapolis Railroad Company, defendant, and under which runs one of the Maryland State highways.

On motion of the defendant railroad, the Maryland State Roads Commission was impleaded as a third-party defendant, but was dismissed before trial by the Railroad on the Commission's motion that, being an agency of the State of Maryland and not having consented to be sued, it is not subject to suit. See Fisher & Carozza Bros. Co. v. Mackall, 138 Md. 586, 114 A. 580; Jones v. Scofield Bros., D.C., 73 F.Supp. 395. See also Lohr v. Upper Potomac River Commission, 180 Md. 584, 26 A.2d 547.

The material facts relative to the collision are found to be these: About 3 o'clock on the morning of September 17, 1946, while still dark, the plaintiffs' tractor and trailer were proceeding easterly on Route No. 176, a public highway of the State of Maryland, in Anne Arundel County. The operator of the tractor, never having driven on this road before, was unfamiliar with the location of the bridge over the highway. When he had reached a point approximately 300 feet to the west of the bridge, he observed a warning sign along the highway to the effect that 500 feet ahead was an intersecting road. Thereupon, he slackened his speed. The trailer was heavily loaded with produce. There was a slight down grade at this point. The tractor's head lights were on and complied with the Maryland motor vehicle laws as to strength and deflection. The trailer required a clearance of 12 feet, whereas there was only a clearance of 10 feet 10 inches between the road and the Railroad bridge, with the result that the upper portion of the trailer crashed into the bridge and was demolished. A major portion of the produce in the trailer was also destroyed. Along the highway which the truck and trailer had been traversing there was no sign of any kind giving a warning of the low bridge clearance. More than a year after the accident, and several weeks before the present suit was filed, the State Roads Commission put up a conspicuous warning sign on the side of the highway, seven hundred or more yards from the bridge, to replace apparently two similar warning signs, one erected at a greater, and the other at a lesser distance from the bridge several years before, but which were not proved to have been still in place at the time of the accident. The only warning appeared in the words "Clearance 10 feet 6 inches", painted, but not illuminated, with letters six inches high, by the State Roads Commission on the steel structure of the bridge itself, so that the letters themselves were 12 or 13 feet above the surface of the highway. The operator of the tractor testified that, as he approached the bridge, he did not see this clearance warning because it was not illuminated and the lights of the tractor, properly focussed on the highway, were not deflected sufficiently upward to shine on this warning sign.

This bridge was built in 1929 by the Maryland State Roads Commission, in order to obviate a grade crossing on a new highway, No. 176, which was constructed as a link between two major highways, U. S. Highway No. 1 and U. S. Highway No. 301. Previously, no highway intersected the Railroad at this point. The Railroad had been maintained there at the same grade for approximately 45 years. The State Roads Commission initiated the project, designed the underpass, determined the clearance, prepared the plans and specifications and constructed the bridge in conformity therewith. The Railroad contributed $3,500 to the cost of the bridge and underpass, and the Railroad's engineer of maintenance of way approved the plans and specifications to the extent that he found the bridge structure to be adequate for the maintenance of the tracks of the Railroad and its train operations. The sharing by the Railroad in the cost of the construction was evidenced by writing, but without reference to any legal obligation so to do. At the time of this construction, the normal clearance for Maryland highways passing under structures of this kind was 14 feet, but because of difficulties which developed in constructing the highway at this point due to a stream under the roadbed, the clearance, as designed, was reduced to 10 feet, 6 inches, and at the time of the collision it was actually 10 feet, 10 inches. The original level of the Railroad tracks was not altered to carry them over the bridge. The Railroad Company never performed any maintenance work with respect to the bridge except to keep the ties and rails in proper condition, and it never received any request from the State Roads Commission to erect any signs on or near the bridge for the purpose of warning travelers on the highway of their approach thereto.

It is to be noted that this is not a case of changing or eliminating a grade crossing where a railroad and a highway intersected, because the Railroad was there for some 45 years before any highway existed at this point. It is a case of a highway being laid out where there had never been one before, and made to pass under a pre-existing railroad's right of way by "sinking" the new highway and carrying the railroad tracks at their original level over the highway by means of a bridge. Thus the Act of 1904, Ch. 620, Sec. 204A, Article 23, Sec. 252, 1939 Annotated Code of Maryland, upon which plaintiffs largely rely, and which was in effect in 1929, and is still, is not applicable to the present situation. That statute provides that a railroad company shall have the right, whenever it considers that the crossing of its tracks by a public highway is dangerous, to provide at its own expense that the public highway shall be carried across its tracks by an overhead bridge or tunnel; and in order to construct the new crossing the railroad company is authorized to exercise the power of condemnation. The statute provides that if a tunnel is employed, its height from the surface of the roadway shall be not less than 14 feet. Thus it will be seen that this statute is not, by its language, applicable to the present case because first, the statute covers a situation where a railroad company, considering an existing grade crossing to be dangerous, has the right to substitute an underpass or overpass; and second, such substitution is entirely at the railroad company's own cost and expense.

Similarly, the Act of 1906, Ch. 312, Sec. 4, Article 91, Sec. 26, 1924 Annotated Code of Maryland, which was in effect in 1929, is, by its terms, inapplicable. It provided that whenever a railroad "hereafter constructed" shall cross a highway the railroad shall be required to keep its roadbed and the bed of the highway in proper repair or else construct an overhead or undergrade crossing, subject to the approval of the State Roads Commission. This statute is inapplicable because the Railroad in the present case never constructed its roadbed across a highway. This Act is still in effect, but the words "hereafter constructed" which originally qualified the railroads made subject to it, were eliminated in 1931. See Article 89B, Sec. 26, 1939 Annotated Code of Maryland.

Likewise, the Act of 1931, Ch. 539, Sec. 13, Article 89B, Sec. 27, 1939 Annotated Code of Maryland, which was in effect in 1929 and is still, is inapplicable, because it provides that whenever a State highway and a railroad cross each other at the same level and the State Roads Commission deems such crossing dangerous to the public safety, the State Roads Commission may substitute an under or over pass. Here again, this law, certainly by its language, is inapplicable to the present case because relating to removal of an existing grade crossing, and none existed at the time the bridge and the highway under it were constructed.

No other provisions of the Maryland laws relating to grade crossings that were enacted prior to or since the construction of the underpass here in issue have any bearing upon the present situation. Sections of the Act of 1927, Ch. 327, and also sections of the Act of 1931, Ch. 539 not heretofore referred to relating to grade crossings, Article 89B, Secs. 28-39, inclusive, 1939 Annotated Code of Maryland, relate to either (1) damages recoverable by property owners affected by grade crossing elimination; (2) the procedure to be followed by the State Roads Commission with respect to grade crossing elimination; (3) obligation of railroad companies to comply with the requirements imposed by the State Roads Commission; or (4) division of expense between the State Roads Commission and the railroad of the cost of eliminating, relocating or altering existing grade crossings, and of the cost of maintaining and repairing bridges, archways or culverts and their approaches required for the elimination of existing grade crossings. By the Act of 1933, Ch. 223, Secs. 15 and 22, the division of such cost was one-quarter to be paid by the railroad and three-quarters by the State Roads Commission. The division had previously been an equal one. Article 89B, Secs. 29 and 37, 1939 Annotated Code of Maryland.

There thus appears to be no Maryland statute embracing expressly the precise situation here involved. However, it is clear from the Maryland decisions that where a highway is constructed, at grade, across, or over or under an existing railroad, whatever construction is necessary must be done and maintained by and at the...