Baltimore, C. & A. Ry. Co. v. Turner

• Decision Date: 27 January 1927
• Docket Number: 86.
• Citation: 136 A. 609,152 Md. 216
• Parties: BALTIMORE, C. & A. RY. CO. v. TURNER.
• Court: Maryland Court of Appeals

136 A. 609

152 Md. 216

BALTIMORE, C. & A. RY. CO. v. TURNER.

No. 86.

Court of Appeals of Maryland

January 27, 1927

Appeal from Baltimore Court of Common Pleas; H. Arthur Stump, Judge.

"To be officially reported."

Action by Mabel R. Turner against the Baltimore, Chesapeake & Atlantic Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

Ralph Robinson, of Baltimore, for appellant.

J Cookman Boyd, of Baltimore (F. Murray Benson, of Baltimore on the brief), for appellee.

OFFUTT J.

The appellee in this case was injured on July 5, 1925, in a collision between an automobile in which she was riding as an invited guest and a railroad train, operated by appellant over its tracks. The accident happened between 1 and 2 o'clock in the afternoon of a clear, hot day, and at a point where the appellant's tracks intersect the state highway between Pittsville and Salisbury, some five or six miles from Salisbury. The automobile was an Overland sedan and there were in it at the time six persons; Mr. Guy Winters, who owned, and was at the time driving, the car Mrs. Winters, his wife, who was sitting on the front seat beside him, their two small children, one of whom was seated on the floor in the rear of the car, and one to the left of, and on the same seat with, Charles R. Turner, who sat in the middle of the rear seat next to his wife, Mabel R. Turner, who sat on the right-hand side of the same seat.

As a result of the accident Mrs. Turner suffered quite severe injuries, for which she asked the appellant to compensate her, and, upon its failure to do so, she brought this action, which resulted in a judgment in her favor, from which the defendant, the Baltimore, Chesapeake & Atlantic Railway Company, appealed. There are ten exceptions, of which the first eight involve questions of evidence; the ninth relates to the rulings of the trial court on the prayers; and the tenth to an order disposing of a motion for a new trial.

Running through the entire case were two questions of fact upon which the appellee's right to recover mainly turned, and, before dealing with the exceptions, in order to grasp their relative significance and importance, the substance of the evidence material to them will be stated. These questions are: (1) At what point did the train first become visible to persons in the automobile in which appellee was riding looking towards it as it approached the crossing; and (2) whether certain roadside signals were so placed and so conspicuous that a person occupying appellee's position in the car in which she was riding should, in the exercise of ordinary care, have observed them. The record covers some 264 pages; it contains much extraneous and immaterial matter such as colloquies between court and counsel; much of the material evidence found in it is cumulative; and to attempt to state it all in any detail is unnecessary, and would tend more to confusion than clarity. We deem it sufficient, therefore, for the purposes of this case, to state briefly in narrative form its substance and effect.

The plaintiff's evidence tended to prove that she and her husband were invited guests in an. Overland sedan automobile, owned by Mr. Winters, who was, at the time of the accident, driving it from Pittsville towards Salisbury over the state highway, which runs from Ocean City through Salisbury; that the day was warm, and the windows of the car were open; that Mrs. Turner, who was on the rear seat behind Mrs. Winters, on the right-hand side of the car, was not familiar with the location of the crossing in question, although she had recently driven over it, and that, because of the elevation of the concrete, she was unable to see the tracks, and did not realize that they were nearing it: that as they drove along she looked out from time to time on either side at the scenery, but more often on the right-hand side, from which the train approached, but she did not see its approach, until it "merged past" a corn and bean "patch," when the automobile was about 50 or 75 feet from the crossing: that the "patch" or corn and the bean vines starting at the railroad about 125 feet from the crossing, and running at an obtuse angle from the railroad, prevented her from seeing the approach of the train until she was 50 or 75 feet from the crossing; that she did not hear it approaching; that no bell was rung, no whistle blown, nor any other warning of its approach given; that 800 or 900 feet away to the east (on her right-hand side) there is a "patch of woods" through which the train which struck them (running east) passed; that on her right, as the car in which she was riding approached the tracks, were several houses along the road, the nearest one to the railroad being about 150 or 175 feet from it; that from 10 to 25 feet from the track there was a weather-beaten "Stop, Look, and Listen" sign on two cross-arms bolted to an upright piece of timber about 10 or 12 feet back from the road; that farther from the crossing on the same side in the field about 40 or 50 feet "back off the road," there was a square sign placed at an angle on an upright, which sign carried an oil advertisement, and also the legend, """Railroad Crossing" in small letters, that farther still from the crossing there was a small "State Road" sign, so defaced that it indicated nothing at all; that the driver of the automobile saw the first of these three signs as he approached the crossing, but that Mrs. Turner saw none of them; that Mr. Turner, one of the occupants of the rear seat when the automobile was about 40 or 50 feet from the tracks, saw the train then about 800 feet away, approaching at a terrific speed; that Mrs. Winters, who saw it at the same time, exclaimed ""Oh, Guy, there is a train," and Mr. Winters, who was driving the car at about 25 or 30 miles an hour, applied his brakes, and it skidded or slid onto the tracks, where it was when the train struck it, and the train ran on for some 800 or 900 feet before it stopped; that as a result of the collision Mrs. Winters was killed, and the other occupants of the car injured, some slightly and others more seriously.

The appellant's evidence amounted to a common traverse of a large part of that offered by the appellee to which we have referred, and tended to prove these facts: That the engineer on the train which collided with the automobile blew two long and two short blasts on its whistle, which were plainly heard at the crossing; that it first blew as it emerged from a tract of woodland about 984 feet from the crossing, and, when it stopped blowing its whistle, a bell was rung until it was quite near the crossing; the automobile was visible to the fireman on the engine which drew the train; that the patch of butter beans which appellant said prevented her from seeing the approach of the train was over 186 feet from the crossing, and the vines were trained on poles about 5 or 5 1/2 feet high, and the "patch" consisted of three rows 4 feet apart, planted 4 feet apart in the row; that the "Stop, Look, and Listen" cross-arm sign was visible, legible, and conspicuous, located about 12 1/2 feet from the track within the limits of the highway; that the oil sign was in a field about 30 1/2 feet from the crossing, and about 19 feet from the concrete roadway, was about 30 inches square, and there was conspicuously painted on it the words ""Railroad--Danger"; that the state highway sign was of steel, about 14 by 21 inches, and was about 275 feet from the crossing, and 8.3 feet from the edge of the road, and had on it the word "Danger," which, while defaced, was legible; that all of those signs were on the east side of the road, or on the right-hand of one approaching the crossing from the direction of Ocean City; that on the same side of the road there was a gas filling station 869 feet away from the crossing, a dwelling 570 feet away from the crossing, and about 150 feet from the highway, and another dwelling and a group of outbuildings over 300 feet from the crossing; that the nearest point of this group of buildings to the road was about 318 feet from it, and the farthest point about 450 feet from it; that, as the train approached the crossing, it was running from 40 to 45 miles an hour, and the fireman who was standing on the "apron" of the locomotive first saw the Winters automobile when it was about 500 feet from the crossing, and he kept it continuously in view until immediately before the collision; that he had no reason to believe it would not stop, the view was unobstructed, and he had begun to ring the bell as soon as the long blasts on the whistle had sounded, and it was not until the engine was within 75 feet of the crossing that he saw that the automobile was not going to stop, and he then yelled to the engineer to stop, and the engineer at once applied the brakes, but was unable to avoid striking the automobile, and, when the train finally stopped about 700 or 800 feet beyond the crossing a part of the motor was found jammed beneath the "pilot bolt" of the engine.

Returning now to the exceptions, as we have stated, the first eight related to the rulings of the trial court upon questions of evidence, and of these the seventh and eighth are waived, so that of these exceptions we are only asked to consider the first six, which all involve the same question, and may be grouped. In dealing with these exceptions it must be noted that the defendant relied in part, if not mainly, on contributory negligence as a bar to the action, and that according to his theory of the case, a vital link in that defense was the fact, if it could be shown, that the approaching train was in open and unobstructed view of...