Frank Steil Brewing Co. v. Washington, B. & A. Elec. R. Co.

• Decision Date: 10 April 1913
• Parties: FRANK STEIL BREWING CO. v. WASHINGTON, B. & A. ELECTRIC R. CO.
• Court: Maryland Court of Appeals

87 A. 838

120 Md. 419

FRANK STEIL BREWING CO. v. WASHINGTON, B. & A. ELECTRIC R. CO.

Court of Appeals of Maryland

April 10, 1913

Appeal from Baltimore Court of Common Pleas; Henry Duffy, Judge.

Action by the Frank Steil Brewing Company against the Washington Baltimore & Annapolis Electric Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Clifton S. Brown, of Baltimore, for appellant. George Weems Williams of Baltimore, for appellee.

BOYD C.J.

The appellant sued the appellee to recover damages for injury to its wagon and contents and harness while crossing the tracks of the appellee at a point near Westport, Baltimore county Md. The wagon was struck on a private crossing by an electric car of the appellee going south at a speed of about 45 miles an hour. The declaration alleges that the damage "was caused by the negligent mismanagement and lack of care used in the operation of the said car by the said employés of the defendant corporation." Although the motive power used is electricity, the cars on the appellee's road run rapidly between Washington, Baltimore, and Annapolis, and the one in this collision weighed nearly 40 tons. There is a tunnel north of this crossing 100 feet long, then an open space of about 100 feet, and then another section of the tunnel about 250 feet long and a retaining wall on the west side of 79 feet. The section of 250 feet is the one nearest this crossing, and the south end of that is 338 feet from the crossing. A person on the crossing can be continually seen from a point on the south-bound track about half a mile north of the crossing looking through the tunnel, but he cannot see a car in the tunnel until he gets on the track.

The driver of the plaintiff testified that he had been crossing at that point every Saturday for seven months; that there was posted on the side nearest the Annapolis road "Railroad, private crossing, cars give no warning for this crossing, beware," and on the other side, "Railroad, private crossing." He testified: "That when he first saw the car it was a good distance away, about 600 or 800 feet, and had not reached the tunnel. The front wheels of his wagon were then inside of the rails of the out-bound track, and the horses had crossed it; that from the approach to the tracks he was always looking both ways; that there is no obstruction from the south end of the tunnel and the place where he stopped," which he said was about 18 or 20 feet from the track. If the driver's version is correct, then there could have been no possible reason why he could not have cleared the track. If the car was going 45 miles an hour, even if it did not lessen its speed after leaving the tunnel, it would have taken it 10 or 12 seconds to reach the crossing from the point at which the driver said he saw it, and, even if he was only going 2 miles an hour, he could easily have gone 25 or 30 feet in that time, which would have enabled him to have cleared the track if his wagon was where he said it was when he first saw the car. As he also said he at once whipped up his horses, he must have been going more than two miles an hour for at least part of the time. Moreover, if the motorman had seen him in that position, when he was 600 or 800 feet away, he certainly had no reason to suppose he would not get off the track which he could have readily done. So, if the driver's theory be true, there can be no recovery.

But the motorman swore: "When I came through the tunnel I looked for the station, and, seeing nothing, I went steady ahead as usual, and when I got near the south end of the tunnel I noticed this team being driven up on the crossing, the horses' front feet about on the crossing; I immediately threw my car into emergency and put on sand and commenced blowing my whistle; and the driver evidently seeing his danger commenced whipping up his horses; that the crossing was in a slippery, slushy condition, and the horses did not get a proper hold, and the driver put the whip on them again and when they did get the proper hold the car came in contact with the end of the wagon; the left side of the car struck the rear wheel of the wagon." The station referred to is what is called "Westport Station," which is simply a platform on each side of the tracks for passengers to get off and on and is not far from the crossing. It is what is spoken of as a flag station, and the cars do not stop at it unless there is some one to get on or off. As the motorman approached it he looked to see whether there were any passengers, and, there being none, he went on as was customary. The uncontradicted evidence is that the car stopped in 200 or 300 feet after it struck the wagon, and that it takes from 450 to 600 feet to stop such a car going at the speed of 45 miles an hour. The conductor and several passengers on the car testified that just as they got to the mouth of the tunnel the motorman blew the whistle and put on the brake. A young lady who was a passenger said that she was thrown forward in the car by the application of the brakes. The testimony of the motorman shows that he did everything possible to avoid the collision.

So whether the theory of the driver or of the motorman be accepted there can be no recovery under the decisions of this court. The evidence showed that there was a snow six or more inches deep which made the crossing more difficult than usual, but there was all the more reason for the driver using special care in going on the crossing with which he was thoroughly familiar. Even in reference to public crossings it was said in Columbia, etc., R. R. Co. v Huff, 105 Md. 34, 65 A. 625: "The law did not require them to blow a signal at the whistling post. The well-settled doctrine of this court is that, while railroad trains have the right of way at public crossings, those in charge of the trains must give all proper and sufficient signals of their approach and take every reasonable precaution according to the character of the crossing to avoid collisions. The reciprocal duty of approaching a crossing with care is imposed upon travelers on the highway, and the more difficult and dangerous the crossing the higher is the degree of care required. It is negligence per se for any one to attempt to cross the tracks of a railroad without first looking and listening and also stopping for that purpose if the track *** is not fully in view at the immediate approach to the crossing." If the snow is calculated to impede the progress of the team, and it was impossible to see further than the mouth of the tunnel, and the approach of a car could not be heard, it would have been more prudent for the driver to have gotten off his wagon, gone to the track, and looked through the tunnel, or else to have requested Mr. Cadden, who was near by, to see whether a car was coming. There are cases which hold that under such circumstances it is the duty of a driver, or some one in the vehicle to get out and lead the horses over. Kintner v. P. R. R. Co., 204 Pa. 497, 54 A. 276, 93 Am. St. Rep. 795; Mankewicz v. Lehigh Valley R. R. Co., 214 Pa. 386, 63 A. 604; Hook v. Mo. Pac. R. Co., 162 Mo. 569, 63 S.W. 360 (per opinion of Robinson, J.); Chicago, etc., R. Co. v. Thomas, 155 Ind. 635, 58 N.E. 1040, and others cited in them. But we do not deem it necessary to determine whether the failure of this driver to...