Baltimore & O. R. Co. v. Wright

• Decision Date: 06 December 1951
• Docket Number: No. 43,43
• Citation: 84 A.2d 851,198 Md. 555
• Parties: BALTIMORE & O. R. CO. et al. v. WRIGHT et al.
• Court: Maryland Court of Appeals

Page 555

198 Md. 555

84 A.2d 851

BALTIMORE & O. R. CO. et al. v. WRIGHT et al.

No. 43.

Court of Appeals of Maryland.

Dec. 6, 1951.

Rehearing Denied Jan. 8, 1952.

E. Stuart Bushong and Irvine H. Rutledge, Hagerstown (Wm. R. Offutt, Oakland, and Lane, Bushong & Byron, Hagerstown, on the brief), for appellants.

John Wagaman, Hagerstown, and Clyde P. Bailey, Pittsburgh (Neil C. Fraley and Walter W. Dawson, Oakland, on the brief), for appellees.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

COLLINS, Judge.

These are appeals from judgments rendered to Ruth Wright for personal injuries including the loss of her leg, sustained at a railroad crossing in Oakland, Maryland, and to Leslie Wright for his wife's medical expenses and for loss of her services, against the Baltimore and Ohio Railroad Company (B. & O.), and Howard Tasker.

The cases were tried together before a jury and verdicts were rendered by the court upon answers to issues submitted, in the amount of $35,000 for Ruth Wright and $5,000 for Leslie M. Wright. Appellant, B. & Q., filed motions for judgment N.O.V. and for a new trial. The motions were overruled, but a remittitur was entered in the sum of $10,000, reducing the Ruth Wright judgment to $25,000. From judgments on the verdicts and remittitur, the B. & O., alone, appeals.

At the time of this accident double tracks of the main line of the B. & O. railroad ran east and west through the town of Oakland and crossed Second Street, the main business street of that town which runs approximately north and south. The railroad crossing was at grade and at an angle to Second Street, which is approximately 40 feet in width. The tracks crossing Second Street at an angle were 92 feet in length from one side of the street to the other. This crossing was protected by the usual cross-arms and by a watchman whose watchbox was on the east side of Second Street about 12 to 14 feet south of the tracks. There were no safety gates. The watchman usually stands, when trains are crossing Second Street, in the center of that street about 10 feet south of the tracks. During the day he carries a standard with a stop sign, and at night he carries one red and one green lantern. In the watchbox is a small light which comes on when the train is five-eighths of a mile east of the Second Street crossing, to warn the watchman of the approach of trains.

On October 23, 1948, shortly after 10 p.m., one of the appellees, Mrs. Ruth Wright, accompanied by her friend, Mrs. Edith Byers, was walking south on the east side of Second Street, intending to cross the railroad crossing to Leslie Wright's automobile which was parked on a lot south of the railroad crossing and on the west side of Second Street. Leslie Wright accompanied the two women part of the way, but when they stopped to talk with a friend, Mr. Wright kept on and crossed the railroad tracks to his parked automobile. As Mrs. Wright and Mrs. Byers neared the railroad crossing, they left the sidewalk on the east side of Second Street and walked over to the west side of Second Street and stopped in the street near the west curb, opposite the first parking meter, 35 feet north of the northernmost rail of the tracks. They did not step up on the sidewalk. They did not proceed further because they saw the headlight of an approaching westbound train. While they were waiting for the train to cross the street, an automobile driven by Howard Tasker, who was accompanied by Corlas Riley, going south on Second Street, drove very close to or across the first rail of the north tract. Mrs. Wright and Mrs. Byers, standing about twenty feet to the rear of the Tasker automobile, thinking that the train was going to hit the Tasker car, started to run in a northerly direction. After Mrs. Wright had taken about one step, the cylinder on the right side of the engine struck the left front of the automobile, swung it around and its right front hit Mrs. Wright, who was then about 39 feet from the track, and injured her severely including the loss of her left leg. Such a blow would naturally not drive the automobile forward. The automobile came to rest after the accident still in the street facing north, which was the opposite direction from which it approached the tracks. Mrs. Wright was lying in front of the automobile in the street with her head near the curb opposite the second parking meter from the tracks. Mrs. Byers was not injured.

An ordinance passed by the Mayor and Council of Oakland on August 7, 1939, limited the speed of trains through Oakland to 20 miles per hour. There was testimony in this case, that at the time of the accident, the train was moving at the rate of from 35 to 40 miles an hour. The court, in its charge to the jury, referred to this ordinance and allowed the jury to consider it. The appellant excepted to the court's instruction to the jury because the court did not instruct it that the 20 mile an hour ordinance was not published in public places as required by the statute and Charter and therefore never became operative. The Oakland Charter, Article 12, Section 425, Code of Public Local Laws of Maryland, 1930 (Flack's), provides in part as follows: 'It shall be the duty of the town clerk to * * * enter all ordinances passed by the Mayor and Council, and signed by the Mayor, in a book kept by him for that purpose, and the books of said corporation shall be open for inspection by any taxpayer at all times, and copies of all ordinances shall be put up in the public places of said town.' The town clerk testified that the ordinance had been posted on the bulletin board of the City Hall and at no other place. It was recorded in the Minute Book. The appellant contends that this provision for publication of the ordinance was mandatory and unless this ordinance was published in accordance with that requirement, it was void. To support this contention the appellant cites a number of tax sale cases in which the notice required by statute was not given. Those cases and some others cited by the appellant are not in point here.

In Atchison, Topeka & Santa Fe R. Co. v. Baker, 79 Kan. 183, 98 P. 804, 21 L.R.A.,N.S., 427, cited by the appellant, a speed ordinance limiting the speed of trains to six miles an hour was found to have been erroneously admitted in evidence, because there was no proof that the ordinance was ever published as required by the statute. However, in that case, the statute specifically required that the ordinance be published before it took effect. There is no such provision in the ordinance or the charter before us here. The case of Santa Rosa City R. Co. v. Central St. R. Co., 1895, 4 Cal.Unrep. 950, 38 P. 986, cited by the appellant, was one where a statute required that the ordinance be published in some newspaper in Santa Rosa at least one time or posted in three public places in said city and should be enforced ten days after such publication or posting. There is no such requirement in the charter or ordinance now before us. In the case of State ex rel. Bump v. Omaha & C. B. R. & Bridge Co., 113 Iowa 30, 84 N.W. 983, 52 L.R.A. 315, relied on by the appellant, there was a provision that the ordinance should not take effect until after it had been published. There is no such provision here.

What was said in the case of Commonwealth v. Davis, 140 Mass. 485, 4 N.E. 577, 578, seems appropriate here. In that case, a city ordinance provided that no person except by permission of the city government should deliver a sermon or lecture on the commons or other public grounds. A statute provided that all ordinances be recorded in the office of the clerk of the superior court for the county. It was claimed that the ordinance was invalid because it had not been so recorded. The Supreme Court of Massachusetts said in that case: 'The defendant also contends that this ordinance is invalid because it has not been 'published two weeks consecutively in three daily newspapers published in the city,' as required by the ordinances. There are two answers to this claim. The Revised Ordinances require such publication, but there is no provision that the ordinances shall not take effect until such publication. The provision requiring publication is directory. It contemplates a publication after the ordinance is enacted, and a compliance with it is not a condition to the validity of the ordinance.' We are of opinion in this case that the provision in the charter for posting the ordinance was directory and not mandatory and that this ruling of the trial court on this ordinance was correct. It was said in Eastern Tar Products Corp. v. State Tax Commission, 176 Md. 290, at page 297, 4 A.2d 462, at page 464: 'The courts hold that where municipal ordinances have been enacted in pursuance of competent authority, they should be upheld by every reasonable intendment, and reasonable doubts as to the validity of an ordinance should be resolved in its favor.' See also Baltimore City v. Gorter, 93 Md. 1, 26, 48 A. 445. In Bond v. City of Baltimore, 118 Md. 159, at page 167, 84 A. 258, at page 260, concerning the validity of an ordinance, the following was quoted: 'And generally, when no rights will be impaired, provisions with no negative words or implications concerning the time and manner in which official persons shall perform designated acts are directory.' There was testimony here that there had been correspondence between the Council and the B. & O. about a former ordinance passed prior to 1939, which limited the speed of trains in Oakland to 30 miles per hour.

The appellant further contends the testimony of Mr. Leslie Wright, that at the time of the accident the speed of the train was 'about thirty-five to forty miles per hour' was inadmissible in view of his lack of opportunity to observe. The testimony was admitted over appellant's objection and over a motion to strike it out. Mr. Wright testified that he went across the crossing ahead of his...