Jackson v. Pennsylvania R. Co.

• Decision Date: 11 January 1939
• Docket Number: 88.
• Parties: JACKSON v. PENNSYLVANIA R. CO.
• Court: Maryland Court of Appeals

3 A.2d 719

176 Md. 1

JACKSON v. PENNSYLVANIA R. CO.

No. 88.

Court of Appeals of Maryland

January 11, 1939

Appeal from Baltimore Court of Common Pleas; Joseph N. Ulman, Judge.

Action by Nathaniel Jackson against the Pennsylvania Railroad Company for injuries. Judgment for defendant, and plaintiff appeals.

Affirmed.

Sigmund Levin and Joseph Kaiser, both of Baltimore (C. Morton Goldstein and Thomas J. Kenney, both of Baltimore, on the brief), for appellant.

Charles T. LeViness, 3d, of Baltimore (Edward E. Hargest, Jr., and Alexius McGlannan, III, both of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, and JOHNSON, JJ.

PARKE Judge.

The single question on this appeal is whether the trial court is in error in sustaining the demurrer to an amended declaration, and, on the refusal of the plaintiff further to amend, in entering a judgment of non pros. against the plaintiff in favor of the defendant for costs. The plaintiff Nathaniel Jackson, was injured on the night of the 29th day of June, 1937, while walking on the railway tracks of the defenant, The Pennsylvania Railroad Company, near a street crossing. The scene of the accident is in Baltimore county where the steam railway of the defendant is laid and maintained upon its right of way which extends through Turkey Station on its route to Sparrow's Point. The right of way of the defendant borders on the lateral margin of the public thoroughfare called Dundalk Avenue or Main Street, which is crossed at various points by parallel streets. One of these intersecting streets and public crossings is known as Soller's Point Road. Apparently between Turkey Station and the street crossing at Soller's Point Road and about 150 feet from the crossing and parallel with it a clearly defined and well worn foot path crosses the railway right of way and tracks of the defendant and is used by pedestrians to cross from one side of Dundalk Avenue or Main Street to the other. The immediate vicinity and neighborhood of the foot-path is thickly settled, and improved by houses, stores and shops. It is further alleged that for many past years the residents of the neighborhood, including the plaintiff, and the public generally, have habitually used the foot-path in crossing the street from one side to the other at their convenience, openly, constantly and notoriously, as the defendant, its agents, servants and employees knew or ought to have known, but had never in any way objected to such user, which had clearly marked and defined the path across the right of way, and its tracks and through the growth on either side of the railway property so that the path was clearly visible for a comparatively long distance in every direction. These averments clearly indicate, as it was stated in argument, that the tracks were of the open country 'T' rail type.

The declaration further alleges that for a long time before the injury complained of all trains of the defendant gave warning notice of their approach to this path by the blowing of a whistle or the ringing of a bell, and had upon all cars and locomotives which approached the path lights and a lookout to give warning to pedestrians who were using the path of the approach of such cars and trains.

It is charged that about ten minutes after nine on the night of June 29th, while the plaintiff was carefully and prudently crossing the railway tracks along the described path, the defendant's servants were engaged in backing a railway engine and its caboose toward the foot-path. It is then alleged that the plaintiff 'was suddenly struck down and dragged by the said engine and caboose which were, as aforesaid, in reverse, and backing in a silent and stealthy manner and at a slow rate of speed toward Soller's Point Road, and which were then and there being operated and controlled by the agents, servants or employees of said defendant and being so done in a careless and negligent manner in that, although it was the duty of the said defendant, its agents, servants and employees, in moving and operating its said engine and caboose upon the rails and tracks at and near the said pathway, and in approaching the same, to use ordinary and reasonable care, and to move its said cars and trains in a reasonably careful and prudent manner, and to anticipate the presence of persons who might be traversing said pathway upon its right of way, the said defendant did nevertheless fail to give reasonably adequate and timely warning either by whistle, bell, lights, lookout or other signal such as the public and the community including the plaintiff, were accustomed and entitled to have; that as a result of being so struck down and dragged aforesaid the plaintiff received serious, painful and permanent injuries * * * and the plaintiff avers that all of his injuries and damages as aforesaid were caused solely through and by reason of the carelessness and negligence of the defendant, its agents, servants and employees, and without any negligence on the part of him the said plaintiff, directly thereunto contributing.'

In order for a plaintiff to have a right of action in negligence against a defendant there must exist a duty which is owed by the defendant to the plaintiff to observe that care which the law prescribes in the given circumstances; a breach by the defendant of that duty; damages and injury suffered by the plaintiff as the demonstrable effect of the breach of duty. Negligence is, therefore, the absence of care according to the circumstances. So, an action for negligence involves the certain and definite allegation of the circumstances, and the failure of the defendant to exercise the care which the law required according to these circumstances. If the allegations should be insufficient to show a duty breached which was the efficient cause of the injury averred, the declaration is bad on demurrer. Frisch v. Baltimore, 156 Md. 310, 315, 144 A. 478; Phelps v. Howard County, 117 Md. 175, 82 A. 1058; Neighbors v. Leatherman, 116 Md. 484, 82 A. 152; Anne Arundel County Com'rs v. Carr, 111 Md. 141, 148, 73 A. 668; Jeter v. Schwind Quarry Co., 97 Md. 696, 699, 55 A. 366; Walker v. Marye, 94 Md. 762, 51 A. 1054; Kennedy v. Cumberland, 65 Md. 514, 9 A. 234, 57 Am.Rep. 346; Philadelphia, B. & W. R. Co. v. Allen, 102 Md. 110, 62 A. 245; Zier v. Chesapeake Beach Rwy. Co., 98 Md. 35, 39, 56 A. 385.

It is plain from these allegations that the footpath mentioned is not a public way but one in whose use as a pathway across its railway tracks the defendant has acquiesced. Some courts hold that if the railway company licenses or acquiesces in the use of its tracks or premises by others, it must exercise reasonable care not only to avoid injuring these users after they are discovered to be in danger but also to keep a careful lookout to discover and avoid injury to all who may be expected to be upon their right of way or premises. It is this doctrine which the plaintiff in the action on this appeal invokes and asks to have enforced. There are weighty reasons in support of the doctrine, but the more cogent reasons are opposed. The doctrine is impracticable and not in harmony with the principles of law which control such cases. As is further expressed in Ellicott on Railroads, 3d ed., vol. 3, sec. 1788, p. 832: 'If it be true, as generally conceded, that a licensee takes his license subject to the 'concomitant risks and perils,' he must surely take it subject to the use of the road in the manner in which it was used at the time the license was granted, that is, subject to the running of trains in the ordinary manner without any special reference to him, and he occupies, therefore, to this extent, substantially the position of a trespasser. In other words the company owes him no duty of active vigilance to specially look out for and protect him, for he must know that his license is subject to all risks incident to the use of the track by the company in the same manner in which it was used at the time the license was granted and that the company assumes no new obligation or duty. Indeed, it seems to us that he is bound to know that a railroad company has no power to license the use of its tracks in such a manner as to interfere with its duties to the public as a common carrier. If it owes a duty to every bare licensee to run its trains with reference to him, to look out for him, to signal, to slow up and, perhaps to stop wherever it has reason to expect him, it can do little else, its trains cannot be on time and the traveling public must suffer. It certainly is not obliged to patrol its tracks from one end to the other to keep off trespassers and to prevent those who use it longitudinally from claiming a license on the ground of acquiescence. It seems to us, therefore, that the only duty which it owes to such persons, whether they are trespassers or bare licensees, is not to wilfully or wantonly injure them but to use reasonable care to avoid injury to them after their danger is discovered.'

The decisions of this Court are uniformly in accord with this statement of the law. In Baltimore & Ohio Railroad Co. v. State, to Use of Allison, 62 Md. 479, 50 Am.Rep. 233, it was argued that there was a path along the track, and people were in the habit of using it for the purpose of passing down to and from Fort Avenue, and beyond, so that it had become such a thoroughfare that the company in the use of its right of way for its engines and cars were under obligation to use it with special reference to this user by the public, and to exercise special caution in passing over the road to avoid injuring any one happening to be on the track. The court rejected this contention and stated the rule at pages 486-488 of the report:

'In reply, the

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