Cunningham v. Baltimore & O. R. Co.

• Decision Date: 17 March 1975
• Docket Number: No. 601,601
• Parties: Walter D. CUNNINGHAM v. The BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: Court of Special Appeals of Maryland

Page 253

25 Md.App. 253

334 A.2d 120

Walter D. CUNNINGHAM v. The BALTIMORE AND OHIO RAILROAD COMPANY.

No. 601.

Court of Special Appeals of Maryland.

March 17, 1975.

W. Kennedy Boone, III, Hagerstown, with whom were Wachs, Kreykenbohm & Boone, Hagerstown, on the brief, for appellant.

Daniel W. Moylan and William P. Nairn, Hagerstown, with whom were Bryon, Moylan & Urner, Hagerstown, on the brief, for appellee.

Argued before MORTON, THOMPSON and POWERS, JJ.

THOMPSON, Judge.

Walter D. Cunningham, appellant/plaintiff, sued the Baltimore and Ohio Railroad Company, appellee/defendant, for damages sustained when his car ran into appellee's train on March 13, 1972 in Martinsburg, West Virginia. Appellant filed a notice of his intent to rely on the statutes and common law of West Virginia pursuant to Md. Code, Art. 35, §§ 47-50. Judge Irvine I. Rutledge sustained a demurrer to the original declaration with leave to amend. Appellant filed an amended declaration, a demurrer to which was sustained without leave to amend by Judge Rutledge. It is from this action that appellant brings this appeal.

Appellant's amended declaration reads in pertinent part as follows:

'That at or about 8:10 p. m. on the 13th day of March, 1972, the said Walter D. Cunningham was operating an automobile owned by him which was traveling in an easterly direction on State Route 9, two hundred feet east of the State Route 9/13 intersection in Martinsburg, Berkely County, West Virginia; that the posted speed limit on State Route 9 at that point and at that time was 55 miles per hour; that at that same time the corporate Defendant was the owner and operator of a railroad including both tracks, trains, and spur line, running North and South across State Route 9, a public highway in Berkely County, West Virginia; that as the Plaintiff approached this crossing he was unaware of and had no knowledge of the existence of said spur line crossing; that in addition darkness had fallen and visibility was consequently reduced; that at that time a train made up of an Engine and cars owned by the corporate Defendant and operated by its agents, servants, or employees, had backed in a southerly direction on said track across State Route 9 and was stopped or almost stopped across State Route 9 at the State Route 9 railroad spur line crossing; that it was the duty of the corporate Defendant, acting by its agents, servants or employees to operate its railroad in a careful and prudent manner to avoid injuries to others lawfully traveling on State Route 9; to maintain or provide a watchman or flagman to warn oncoming motorists of the presence of the train standing or almost standing in the darkness across the State road; or to maintain electric safety devices, bells, or lights at or near the crossing herein above described to give adequate warning to oncoming vehicles approaching said spur line crossing of the presence of a train blocking a State road in the darkness, or to give adequate warning by any other means of the fact that there was a spur line crossing and/or that a train was stopped or almost stopped on this crossing blocking the lawful travel of vehicles on State Route 9 in order that the operator of a vehicle approaching the crossing at a rate of speed at or within the posted limit of 55 miles per hour would be warned of the presence of the stopped or almost stopped train blocking State Route 9 in the darkness in sufficient time to be able to come safely to a stop in order to avoid injury to himself and/or in order to stop and/or to look and listen for oncoming train traffic; but in spite of these duties the said corporate Defendant, acting by its agents, servants or employees carelessly and negligently failed to operate its railroad in a careful and prudent manner to avoid injuries to others lawfully traveling on State Route 9; failed to provide a flagman or a watchman to warn of the presence of the stopped or almost stopped train blocking the State road in the darkness; failed to maintain or provide electric safety devices or proper lighting or bells, or other signal devices at or near the above stopped or almost stopped train on said spur line crossing to warn of the presence of the stopped or almost stopped train blocking the State road in the darkness; and/or failed to give, provide, or maintain adequate warning of any other nature or by any other means of the presence of the stopped or almost stopped train blocking State Route 9 in the darkness; and as a result caused and allowed the Plaintiff, who was operating his vehicle in a careful and prudent manner, to crash into a boxcar which was part of the above train owned by the corporate Defendant, and which was operated by its agents, servants, or employees, and which was situate across the road at the above crossing blocking the entire lane of travel of the Plaintiff.'

The trial judge found that this declaration did not state facts sufficient to establish negligence on appellee's part and further that the facts established that the appellant was guilty of contributory negligence.

In making our determination of the propriety of the trial judge's actions, we are bound by the substantive law of West Virginia; procedural matters however are governed by the law of Maryland. Vernon v. Aubinoe, 259 Md. 159, 162, 269 A.2d 620 (1970); Joffre v. Canada Dry, Inc., 222 Md. 1, 6, 158 A.2d 631 (1960).

The Primary Negligence of the Railroad

The duty of a railroad to warn motorists at or near a railroad crossing in West Virginia was discussed in Niland v. Monongahela West Penn Public Service Co., 106 W.Va. 528, 147 S.E. 478 (1929) where the Court stated at 479:

'There is no absolute requirement upon a railroad company to blow a whistle and ring a bell at a crossing, unless made so by statute.'

Freeman v. Monongahela Valley Traction Company, 98 W.Va. 311, 128 S.E. 129, 131 (1924).

The statutory duty of a railroad to provide warnings is contained in West Virginia Code, Ch. 31, Art. 2, § 3104 and § 3105.

The former section deals with trains approaching an intersection and provides:

'A bell or steam whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman, at a distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling for a time sufficient to give due notice of the approach of such train before such street or highway is reached, and any failure so to do is a misdemeanor punishable by a fine of not exceeding one hundred dollars;'

The latter section imposes a general duty applicable to all intersections and provides:

'Every railroad company shall, at every place where a road or street crosses its railroad on the same level, erect and maintain suitable signboards or notices of warning apprising persons of the danger in crossing its tracks.'

It is thus readily apparent that a railroad's duty to warn motorists is substantially greater in situations where a train is approaching an intersection than in situations where a train has already crossed the intersection and is therefore blocking the road. It is the latter situation with which we are concerned in the instant case. Appellant's amended declaration contains no allegation that the railroad violated the statutory duty imposed by § 3105 to post signs on the highway warning motorists of the crossing. The allegation that the railroad 'failed to give, provide, or maintain adequate warnings of any other nature or by any other means of the presence of the stopped or almost stopped train' is concerned specifically with the railroad's duty to warn of the train's presence across the road and not with the railroad's duty to warn of the existence of the crossing itself. ¹ The West Virginia code requires a warning bell or whistle only where a train is approaching an intersection. The cases cited by appellant in support of his contention are inapposite because they all deal with situations in which a train approaching a crossing fails to give adequate warning. That type situation calls for a greater duty of care on the railroad's part as is evidenced by the requirements of § 3104 cited above. Reason dictates such a distinction because it is clear that a motorist will be less likely to become aware of a train, often moving at high speed, approaching a crossing than one which is already directly in sight.

Under certain conditions, however, a railroad may have an additional duty to warn motorists.

'As for the assertion that the absence of a flagman or other additional warning device constituted negligence, it is well settled that no general duty exists requiring the maintenance of flagmen or other signaling devices in addition to warning signs at railroad crossings, at least in the absence of conditions making the crossing unusually dangerous.' Morris v. Baltimore & Ohio Railroad Company, supra at 651.

In Hartzler v. Chesapeake and Ohio Railway Company, 433 F.2d 104 (7th Cir. 1970) quoting from Central Indiana Ry. Co. v. Anderson Banking Co., 252 Ind. 270, 247 N.E.2d 208 (1969) the Court stated the majority rule in this regard at 106-107:

'The doctrine prevailing in most jurisdictions, as the later cases show, is that where there is evidence that the particular crossing, either...