Glick v. Cumberland & W. Elec. Ry. Co.
| Citation | 92 A. 778,124 Md. 308 |
| Decision Date | 02 December 1914 |
| Docket Number | 24. |
| Parties | GLICK v. CUMBERLAND & W. ELECTRIC RY. CO. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.
"To be officially reported."
Action by Henry J. Glick against the Cumberland & Westernport Electric Railway Company. From a judgment for defendant plaintiff appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.
Albert A. Doub and W. G. Devecmon, both of Cumberland, for appellant.
Benjamin A. Richmond, of Cumberland (D. James Blackiston, of Cumberland, on the brief), for appellee.
The appellee operates an electric railway between Cumberland and Westernport, in Allegany county, Md. Between Frostburg and Westernport the track of the appellee, for the greater portion of the way, is located on the side and occupies a part of one of the public roads of the county. The railway runs through the open country, the track is constructed with T-rails, and the cars are operated at a high speed. At a point called Reynolds the appellee erected a car barn, 120 feet long and about 37 feet wide, on one side of the public road and a power house on the opposite side. Assuming that the public road, at this point, runs north and south, the barn is on the east side of the road, and the track of the appellee, for the entire length of the barn, is located between the barn and the driveway of the road. Just below the south end of the barn the public road makes a sharp curve and crosses from the west side to the east side of the railway track. South of this crossing, towards Westernport, the railway track runs on the west side of and on a level with the public road. A person driving north on the road has, for a long distance before reaching the crossing, an unobstructed view of the railway track and the crossing; but until he reaches the point where the road turns to cross the track his view of the track beyond or north of the crossing, and of a car approaching the crossing from the north, is partially, if not completely, obstructed by the car barn. The evidence further shows that when you are traveling over the road south of the crossing the barn also interferes with the sound of a car approaching the crossing from the north, and the sound of its whistle, and that the motorman in charge of the car cannot see a person driving on the public road south of the barn until that person reaches the point where the road turns to cross the railway track.
On the day of the accident which gave rise to this suit, and which occurred about 4 o'clock in the afternoon of July 28, 1913, the appellant drove in his automobile, a seven-passenger touring car, from Cumberland to a village called Franklin, several miles south of Reynolds. He was accompanied by his wife and two friends, and the car was driven by an experienced chauffeur who had been in the employ of the appellant for several years. The appellant and the chauffeur were familiar with the road, the location of the appellee's track, and knew that the cars were operated at great speed. They drove over the crossing on their way down to Franklin, and after remaining there about half an hour started back to Cumberland over the same road. As they approached the crossing, with a clear view of the track and the crossing, the chauffeur says he was driving at the rate of about 15 miles an hour until he got to within about 30 feet of the crossing, when he reduced the speed of the automobile to about 8 or 10 miles an hour, and changed from high to the second gear in order to get sufficient power to take him over the crossing; there being a slight ascent from the east side of the road over the crossing to the west side of the track. The appellant and the chauffeur say that as they approached the crossing, and were traveling at the rate mentioned, they were looking and listening for a car, but did not see or hear one. The chauffeur states that when he "got almost on the track" he saw a car coming from behind the barn, "and when I got stopped the front wheels were on the track and the car struck me." He says further that as they drove up the road towards the crossing the machine made very little noise, and not enough "to drown the sound of" a car or its whistle; that it was a clear day, and he can hear the whistle of a car half a mile away; that the automobile makes a little more noise when running on the second gear; that the barn obstructed the view of the track beyond the crossing; that he did not stop the machine to look or listen for a car; and that the fender on the car struck the right front wheel of the automobile and turned the automobile around. The appellant, who was sitting in the front seat with the chauffeur, says that they passed a car on their way down to Franklin, and that when they were returning and were approaching the crossing he looked and listened for a car; that the barn obstructed his view of the track beyond the crossing; and, that as he did not see or hear a car, "we kept on until we seen the approach of a car, and the man stopped, and unfortunately we were left on the track, and the car struck us and shoved us 8 or 10 feet down the track." As the result of the collision, the automobile was damaged, and the appellant's head was cut and his knee injured.
The motorman of the electric car, whose testimony was corroborated by the conductor and a number of passengers on the car at the time of the accident, states that he blew the whistle for a road crossing a short distance north of the barn; that as he approached the barn he blew the whistle again for the crossing at which the accident happened, and reduced the speed of the car to about 7 or 8 miles an hour; that there is a slight descent in the track from the north end of the barn to the crossing; that as he was coming along towards the south end of the barn, when he got about 20 feet from the crossing he saw the appellant's automobile approaching the crossing; that the automobile was about 15 feet from the track when he first saw it; that he threw on the brakes of the electric car, locked the wheels of the car, and did everything he could to stop it. He describes what followed as follows:
He states further that when the car and automobile collided the car pushed the automobile two or three feet before the car stopped; that he was looking towards the crossing as he approached it; that he saw the automobile as soon as it was possible for him to have seen it; and that he stopped the car within about 22 feet.
At the conclusion of the testimony the court below withdrew the case from the jury on the ground that the plaintiff had been guilty of contributory negligence, and this appeal is from the judgment accordingly entered for the defendant.
That a railroad track is a signal of danger, and that one attempting to cross it must, in order to avoid the imputation of negligence, first look and listen, and, if the view be obstructed, stop, look, and listen for an approaching car, is a principle too firmly rooted in the law of this state to admit of any further question. It expresses the fixed standard of necessary caution and care, and has for its object the protection not only of those who travel on the public roads, but also those who require the service of steam and electric cars. In the case of P., W. & B. R. R. Co. v. Hogeland, 66 Md. 149, 7 A. 105, 59 Am. Rep. 159, the late Chief Judge Alvey, after referring to the duty of railroad companies, said:
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