Baltimore & O.R. Co. v. State
| Decision Date | 03 December 1902 |
| Parties | BALTIMORE & O. R. CO. v. STATE, to Use of ROMING et al. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court; George M. Sharp, Judge.
Action by the state, for the use of Julia Roming, widow, and others against the Baltimore & Ohio Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.
Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, PEARCE SCHMUCKER, and JONES, JJ.
Hugh L Bond, Jr., W. Irvine Cross, and Edward T. Noble, for appellant.
William S. Bryan, Jr., and Edwin Burgess, for appellees.
The equitable appellees are the widow and children of John C Roming, who was struck and killed by a passenger train of the appellant at a grade crossing near Annapolis Junction. The suit was brought for their use, to recover damages for the loss of his life, which the declaration alleged was caused by the negligence of the servants of the appellant. The verdict and judgment were against the defendant, and it appealed.
There are several exceptions in the record to the rulings of the court below, but the substantial issue in the case is presented by the rejection of the defendant's first and second prayers, offered at the close of the evidence. The first prayer asked the court to take the case from the jury for want of evidence legally sufficient to show that Roming's death had been directly caused by the negligence of the defendant or its agents. The second prayer instructed the jury to find for the defendant because by the undisputed evidence the negligence of Roming directly contributed to the accident which caused his death.
A plat of the location of the accident, made from actual measurements, was used, by agreement, as if it were part of the record, at the hearing of the case. From this plat, and the testimony of the witness Zepp, who made the measurements it appears that at the crossing where the accident occurred, and for some distance on each side of it, the railroad tracks run east and west by a uniform curve northerly of 30'. The railroad has two tracks, and there is a switch on the south side of the main tracks, thus making three tracks in all, which the public road crosses at grade. Annapolis Junction station is a little over 100 yards west of the crossing. At the distance of nearly 200 yards east of the crossing a county road passes over the railroad by an overhead bridge, of a single span, having a clear width of 50 feet between its abutments. From the crossing to the bridge the view is unobstructed, but east of the bridge the railroad runs through a cut of such depth as to conceal a train of cars from the view of a person standing at the crossing, except in so far as the curve in the tracks permits it to be seen by looking underneath the bridge. The railroad company voluntarily maintains a gate at the crossing, which is operated by a gateman during the day, but is left open at night. The public road by which Roming was attempting to cross the tracks when he was killed runs a short distance south of, and nearly parallel to, the railroad, until it reaches the crossing, where it turns north by almost a right angle, and crosses the tracks. Roming at the time of the accident had been going east on this road until he reached the crossing, when he turned north across the railroad. The train by which he was struck was coming west toward him, on its way from Baltimore to Washington. The witness Zepp testified that by actual measurement the distance from the grade crossing to the overhead bridge was 575 feet. He further testified that, in approaching the crossing from the south by the road on which Roming traveled, he could, when 50 feet south of the center line between the tracks, by looking easterly under the overhead bridge, see a man standing in the center of the west-bound track, 1,275 feet distant; that, when 45 feet south of the center of the tracks, he could see him 1,245 feet off; that when 35 feet south of the center of the tracks he could see him 1,150 feet off, and, when 25 feet south of the center line of the tracks, he could see him 1,115 feet off. He further testified, though not from actual measurement, that he was positive that one standing midway between the tracks at the crossing could see the west-bound track at least 250 feet beyond the bridge, and that when standing there he had in fact seen trains approaching from the east at that distance beyond the bridge. There was no direct contradiction of this testimony, although other witnesses expressed the opinion that the distance from the crossing to the bridge was somewhat less than Zepp's measurement made it, and that a west-bound train could not be seen by one standing at the crossing until it reached the bridge. The accident by which Roming lost his life occurred at about quarter past 10 o'clock at night. No one saw the actual collision between the train and the wagon in which he was riding. J.W. Furley, the engineer of the train, testified that as he approached the crossing he was standing in his usual place, in the right-hand side of the engine cab, looking forward, and when within an engine length of the crossing he saw a horse trying to cross the track, and that he at once pulled the whistle with one hand, and applied the brake with the other hand; that he stopped the train (five cars and the engine) within its own length, and went forward and found Roming under the tender, which had dragged him along after he was struck; that the train was running from 15 to 18 miles an hour at the time, and nothing could have been done to save Roming after the horse was seen. The engineer further testified that, when approaching Annapolis Junction from the east, he is in the habit of blowing a long blast for the block...
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