Baltimore & O. R. Co. v. Leasure
| Decision Date | 09 November 1949 |
| Docket Number | 8. |
| Citation | 69 A.2d 248,193 Md. 523 |
| Parties | BALTIMORE & O. R. CO. v. LEASURE. |
| Court | Maryland Court of Appeals |
Action by Robert G. Leasure against the Baltimore & Ohio Railroad Company for personal injuries sustained in crossing accident.
The Circuit Court for Washington County, Joseph D. Mish, J entered a judgment for plaintiff for $14,000 after the plaintiff had entered a remittitur of $3,500, as directed by the court, from a jury verdict, and the defendant appealed.
The Court of Appeals, Henderson, J., held that there was error in submitting the case on the last clear chance doctrine as respects the engineer but that there was sufficient evidence to justify submission to jury on the last clear chance doctrine as respects the crossing watchman, and reversed the judgment and awarded a new trial.
D Lindley Sloan, Cumberland, and E. Stuart Bushong, Hagerstown (Wm. A. Gunter, Cumberland, and Irvine H. Rutledge Hagerstown, on the brief), for appellant.
James Alfred Avirett, Cumberland, and John Wagaman, Hagerstown, for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
This is an appeal from a judgment for $14,000, entered by the court after the plaintiff filed a remittitur of $3,500, as directed by the court, from a jury verdict. The case arose out of an accident in Cumberland, in which a pedestrian was struck by a 'shifter' backing over a railroad grade crossing. The declaration alleged negligence on the part of the railroad company, in the operation of the shifter at an excessive rate of speed, lack of warning, failure to maintain a proper lookout, and failure to stop promptly after striking the plaintiff.
The scene of the accident was the Baltimore Street crossing of the railroad, which consists of seven tracks over a heavily travelled, paved intersection in the heart of Cumberland. The most northerly track, No. 1, is used for westbound passenger trains, No. 2 for eastbound passenger trains, No. 3 for freight trains, and No. 4 for freight and shifting operations. South of No. 4 track there is a space of about 18 feet, between the four main tracks and three side tracks that are seldom used. The total length of the crossing, in a northerly direction, is 87 feet, its width is 62 feet.
At about 3:45 p.m. on November 12, 1947, the plaintiff, 79 years of age, was on his way home from work. It was day-light and the weather was clear. The plaintiff was entirely familiar with the crossing, which he used daily, and knew that a watchman was always on duty to control traffic there. The watchman's box is located at the northwest corner of the intersection. The plaintiff's sight and hearing were normal for his age. He approached the tracks on the east side of the street, proceeding in a northerly direction, and stopped just short of the No. 4 track to await the passage of a freight train going east on No. 3 track. He was about 10 feet from the easterly side of the crossing. He stood there about 5 minutes. After this train had passed, he stepped into the No. 4 track, where he was immediately struck by the tender of a shifter engine backing in a westerly direction. He testified that he did not look to his right before stepping on the track, although he heard 'the bell ringing on the engine', that he was 'in a hurry to get across, I guess'. He was struck by the rear end of the tender after he had taken 'not over one or two steps'. There was a projecting step behind the wheels on each side and a projecting coupler in the middle. He was knocked down and pushed along the track to a point near the westerly side of the crossing, at which point one of the wheels on the northerly rail passed over his leg and severed it.
Louis H. Lehman, a witness for the plaintiff, testified that he was standing at the crossing awaiting the passage of the freight train. An elderly couple was standing to his left, and the plaintiff further to his left. After the train passed, the elderly gentleman started across in front of the shifter, but the witness pulled him back. He saw the plaintiff start across and yelled at him, 'but he seemed to get excited and threw up his hand and started to turn back but then he went ahead the other way'. He saw the tender strike him, then 'it got out of my view'. He estimated that it was about 45 or 50 feet from the point of impact to the point where the plaintiff was lying after the accident. The bell on the shifter engine was ringing all the time.
Joseph A. Kienhofer, a witness for the plaintiff, testified that he was on the west side of the crossing. He did not see the tender strike the plaintiff, but saw him pushed from 20 to 35 feet along the track.
John Parch, a witness for the plaintiff, testified that he was going north on the west side of Baltimore Street. He saw the plaintiff struck by the step on the tender; the plaintiff 'did not fall right away' but 'took 3 or 4 steps with his hands up in the air' before he was knocked down on his back and pushed. The engine was going so slowly 'that you could walk in front'. The wheel passed over the plaintiff's leg when he was four or five feet from the westerly side or edge of the crossing. This was confirmed by the testimony of other witnesses as to blood spots on the rail about three feet from the westerly edge. When the plaintiff was down on the track he heard shouts of 'stop the engine', and 'you are dragging a man under the engine'. After he heard this, the tender pushed the plaintiff about 25 feet before it came to a stop. He saw the watchman standing in the middle of the crossing on No. 2 track, and heard him blowing his whistle.
The engineer testified that at the time of the accident he was running at 2 or 3 miles per hour, with the automatic bell ringing. He was seated on the right side of the engine, looking back over his right shoulder at an angle along the side. The tender was about 23 to 26 feet long. There was a car ahead of the engine, with its brake set.
He did not see any one standing close enough to the track to be in a position of danger. As he approached the crossing he looked at his air gauge overhead, to see what the pressure was, for 'maybe one or two seconds'. It was necessary to look at the gauge to see how much brake was on; 'you do not want to put enough on to stall and yet you slow down, too.' He intended to stop at a switch just west of the crossing. He did not see the plaintiff step on the track. He could not see behind the tender. He did not know that plaintiff was on the track until the fireman, on the opposite side of the cab, called to him to stop. He then put the air in emergency and stopped in 1 or 2 feet.
The fireman testified that he was looking back out of the left window of the cab. There were a number of pedestrians waiting on that side after the freight train cleared the crossing. He saw the watchman in the middle of the crossing. He did not know that anything was wrong until he heard the watchman call something to him and told the engineer to stop. He did not see the plaintiff until he got down from the cab. The tender body overhangs the rails about 1 1/2 feet on each side.
The watchman testified that he was standing with his stop sign raised on No. 2 track when the freight train passed. Two women on the west side of the crossing started to cross when the freight train passed, and he 'went over to them and got them back off of there and I stepped back then'. He first saw the plaintiff on No. 4 track 'about 6 feet from the west side of the crossing.' He did not blow his whistle, but yelled to the fireman to stop. The engine stopped in about 12 feet after he yelled. He took 2 or 3 steps forward to call up to the fireman, just opposite him. He did not see the train strike the plaintiff or knock him down.
From this brief summary it is clear that the charges of excessive speed and lack of warning are wholly unsupported. It is conceded that the plaintiff was guilty of negligence in failing to heed the warnings and leaving a place of safety without looking to his right before stepping on the No. 4 track. The appellee contends, however, that there is legally sufficient evidence of a failure to maintain a proper lookout and failure to stop promptly, on the part of the railroad employees, to justify the submission of the case to the jury under the doctrine of last clear chance.
At the conclusion of the testimony the defendant moved for a directed verdict, which motion was refused on the ground that the doctrine of last clear chance was applicable. The Court noted for the record that 'if the defendant would offer a prayer on the doctrine of last clear chance it would be granted'. No such prayer was offered. The court later denied a motion for judgment N.O.V. There was no oral charge. The only instruction, other than an instruction as to damages, was contained in the plaintiff's first prayer, which read as follows:
'The jury is instructed that if they find from the evidence that the engine of the Defendant Corporation struck the Plaintiff while the Plaintiff was in the act of walking across the Baltimore Street crossing of said Defendant Corporation in the City of Cumberland, and that Plaintiff was dragged, pushed or carried across said crossing to a point a short distance Northwest of said crossing, and find that said Pla...
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