Krause v. Baltimore & O. R. Co.

• Decision Date: 16 November 1944
• Docket Number: 31.
• Citation: 39 A.2d 795,183 Md. 664
• Parties: KRAUSE v. BALTIMORE & O. R. CO.
• Court: Maryland Court of Appeals

39 A.2d 795

183 Md. 664

KRAUSE v. BALTIMORE & O. R. CO.

No. 31.

Court of Appeals of Maryland

November 16, 1944

Appeal from Court of Common Pleas of Baltimore City; J. Craig McLanahan, Judge.

Action by W. Russell Krause against the Baltimore & Ohio Railroad Company, a body corporate, for damages arising out of collision between an automobile driven by plaintiff and a Diesel engine of defendant at a railroad crossing. From a judgment n. o. v. for defendant, plaintiff appeals.

Reversed and judgment entered for plaintiff.

Lester L. Barrett and Michael Paul Smith, both of Baltimore (Smith, Barrett & Adelson, M. William Adelson, and John H. Fringer, Jr., all of Baltimore, on the brief), for appellant.

John S Stanley and J. Sarsfield Sweeny, both of Baltimore (Hershey Donaldson, Williams & Stanley, of Baltimore, on the brief) for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN BAILEY, CAPPER, and HENDERSON, JJ.

CAPPER Judge.

The appellant brings this appeal from the Court of Common Pleas of Baltimore City by reason of the action of said Court in granting a motion of appellee for a judgment non obstante veredicto after a jury had rendered a verdict in favor of the appellant for $8,500.

Appellant, while driving alone in his automobile on the morning of November 12, 1941, received serious personal injuries by being struck by a Diesel engine of appellee at a railroad crossing on Ponca Street, a public highway in the City of Baltimore. He was traveling on this street in a southerly direction toward the crossing and was on his way to work at the time, which he fixed at a little after six o'clock a. m. The crossing toward which he was traveling consisted of four tracks laid in said street at right angles. Appellant testified in his own behalf that he was familiar with these tracks and knew they were dangerous; that at the time of the accident it was dark, which he described as being cloudy and a little foggy that morning. There were no buildings or other objects to obstruct the view of this crossing.

The testimony discloses that there was a railroad crossing sign on the north side of these tracks approximately thirty-seven feet from the north rail of the northerly track, this being the track which the appellant was approaching; that Ponca Street at this point is paved and it is between twenty and twenty-one feet wide; that the distance from the north rail of the southerly track to the south rail of the track next to it is twenty-seven feet and that the distance from the northerly rail of the southerly track to the northerly rail of the northerly track is approximately fifty-two feet.

It is further shown that there was a street light on an arm extending from a pole approximately on the east of Ponca Street at the track on which the Diesel engine was approaching from the southeast.

The evidence does not definitely show that the street light was burning, but it discloses that the circuit was turned off at 6:20 o'clock, leaving a presumption that the light was burning when the accident happened.

Appellant testified that he approached the crossing on the right lane of the street and had crossed in safety the first three tracks when in a matter of seconds a dark object approached on the last track from his left and collided with his automobile. He testified that he had his driving headlights burning at the time and that they gave light somewhat to the side but not much on his left; that his lights and brakes were in good condition; that his windows were closed with the exception of a ventilator window on his left side, being the driver's side. He further testified that when he reached a point about fifty feet from the most northerly track, he slowed down to about ten miles an hour and looked and listened to his right and left; that this distance would be about one hundred feet from the track on which he was injured. He did not see or hear anything and started across the tracks, listening the whole way across until the accident happened upon the fourth track. He also testified that after he started across the tracks he began to increase his speed from ten miles an hour but gave no estimate as to what the increase in speed amounted to.

At the time appellant was traveling toward these tracks, Carl Cornell, who was in charge of the experimental room at the Westinghouse Electric Company, engaged in secret government work, and for whom appellant worked, was on his way to work in his car and proceeded along said street about twenty feet or so behind the appellant. He stated that the accident happened a few minutes after six o'clock; that it was dark and quite foggy; that he had his headlights on and that other cars had their headlights on; that it was definitely dark. He proceeded in this manner for some three-quarters of a mile traveling at the rate of about twenty to twenty-two miles per hour behind the appellant. He also said that as he approached the railroad crossing, he looked for approaching trains and engines and was very careful as a number of accidents had happened in that vicinity. When he was about seventy-five or eighty feet north of the first rail, he stated he looked both ways and there was no train in sight, no headlight, or any object at all. He had his windows half open and heard no signal given by any approaching train and no whistle, bell, or anything.

Both appellant and witness Cornell testified that their sight and hearing were normal at that time. Cornell further testified that he saw appellant apply the brakes fro the first track and slow up and that witness also slowed up and kept on looking both ways for a train when, 'the first thing I saw of the train was just when it started to push Russell's car and I slammed on the brakes and pulled over to the side and jumped out and ran down the siding. There was no light burning on the engine until after the engine stopped and then they turned the light on while they were getting Mr. Krause out of there. The scene of the accident was directly in front of my car and my headlights reflected on it and I first saw the engine when my headlights picked up the actual happening of the accident.'

It is admitted by all parties to this cause that there were no gates over this crossing and no watchman or warning bell and never had been.

The absence of crossing gates under the circumstances in this case is not evidence of negligence, to which could be attributed this accident. We think the city law requiring crossing gates at this point is obsolete and that in any event appellant being fully familiar with the crossing did not require for his protection reliance upon crossing gates or watchmen. Baltimore & O. R. Co. v. Mali, 66 Md. 53, 5 A. 87; State v. Maryland Electric Rys. Co., 124 Md. 434, 92 A. 961; Baltimore & O. R. Co. v. Welch, 114 Md. 536, 80 A. 170; Pennsylvania R. Co. v. Yingling, 148 Md. 169, 129 A. 36, 41 A.L.R. 398; Buczkowski v. Canton R. Co., 181 Md. 377, 30 A.2d 257.

As to the alleged neglect of appellee to sound any whistle or horn at this crossing, the employees of the train testified that the automatic bell was ringing and that the horn and whistle were blown as was customary upon approaching a crossing. Both appellant and witness Cornell testified they were looking and listening for trains as they approached this crossing. While appellant's windows were closed, his ventilator window was open, which would assist him in hearing a whistle or bell of an approaching train.

Cornell testified the windows of his car were partly open and this should have enabled him to hear the approaching engine. Both knew of the dangerous condition of the crossing and they testified they were carefully aproaching it and were looking and listening for trains. They testified positively that they did not hear any horn or whistle. It cannot be said as a matter of law that this was not some evidence at least to the effect that no such signals were given. Their testimony is not comparable to that of witnesses in other cases who merely stated that they did not hear the signals given by approaching trains where the evidence showed they were not particularly interested in listening for signals.

We think the decisions of this Court hold that evidence such as that of appellant and Cornell concerning the absence of signals is evidence that such signals were not given. They were traveling at a slow rate of speed and there is no evidence showing any noise or other conditions in that vicinity which would prevent them from hearing. Western M. R. Co. v. Kehoe, 86 Md. 43, 37 A. 799; Northern Cent. R. Co., v. State to Use of Gilmore, 100 Md. 404, 60 A. 19, 108 Am.St.Rep. 439, 3 Ann.Cas. 445; Heinz v. Baltimore & O. R. Co., 113 Md. 582, 77 A. 980; Chairs v. Norfolk & W. R. Co., 151 Md. 679, 135 A. 827; Lozzi v. Pennsylvania R. Co., 152 Md. 508, 137 A. 293; State for Use of Emerson v. Baltimore & O. R. Co., 171 Md. 584, 190 A. 231.

It is shown by the record that on the day of this accident when Eastern Standard Time was in effect, twilight began at 5:12 a. m., and sunrise at 6:45 a. m. The appellant and witness Cornell both testified that it was somewhat cloudy and very foggy. The Weather Bureau report shows that it was cloudy but there was no fog. There is no other testimony to contradict the fact that it was cloudy or foggy excepting that of the engine crew, whose testimony was to the effect that there was a visibility of some five hundred to six hundred feet and that objects could be seen in the dimness of dawn. The evidence clearly shows that other automobiles traversing this street at the time of the accident had their headlights on and that the street lights were not turned off until 6:20 a m., some ten minutes or more after the accident. The...