Mayor and City Council of Baltimore v. Seidel

• Decision Date: 09 January 1980
• Docket Number: No. 375,375
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. Walter Lee SEIDEL, Jr., et al.
• Court: Court of Special Appeals of Maryland

Page 465

44 Md.App. 465

409 A.2d 747

MAYOR AND CITY COUNCIL OF BALTIMORE v. Walter Lee SEIDEL, Jr., et al.

No. 375.

Court of Special Appeals of Maryland.

Jan. 9, 1980.

William Hughes, Associate City Sol., Baltimore, with whom were Benjamin L. Brown, City Sol. and William R. Phelan, Jr., Asst. City Sol., Baltimore, on brief, for appellant.

Kenneth P. Niman, Baltimore, with whom were Paul D. Bekman and Kaplan, Heyman, Greenberg, Engelman & Belgrad, P. A., Baltimore, on brief, for appellees.

Argued before MORTON, THOMPSON and WILNER, JJ.

THOMPSON, Judge.

The Mayor and City Council of Baltimore (the City) appeal from a judgment entered against it in favor of Walter Lee Seidel, Jr., Frances Seidel, his wife, and Northwestern National Insurance Company. (All of the appellees are hereinafter referred to as the Seidels).

The trial judge entered judgment against the Penn Central Transportation Company (Penn Central) and the City for the sum of $38,515.07. Penn Central did not appeal.

I Sufficiency of the Evidence

Appellant's first contention is that the trial judge erred in failing to grant its motion for directed verdict. In considering a motion for a directed verdict, the trial court must assume the truth of all credible evidence, and all inferences fairly deducible therefrom in the light most favorable to the party against whom the motion is made. Impala Platinum Ltd. v. Impala Sales, 283 Md. 296, 328, 389 A.2d 887, 905-906 (1978); thus, we will recite the evidence in the manner most favorable to the appellees.

On February 7, 1973, at approximately 5:00 a. m. appellee Walter Lee Seidel, Jr. was driving his 1972 Ford truck to his place of employment, the F. & M. Schaefer Brewing Co., located at Conkling and O'Donnell Streets in Baltimore City. It was dark and the weather conditions were foggy and misty. Seidel followed his usual route from his home on Wilkens Avenue and, as he approached the plant, made a left turn from Boston Street onto Conkling Street. Approximately forty feet from its intersection with Boston Street, Conkling Street is crossed at grade by eight sets of railroad tracks, seven of which were in regular use. There were no street lights in the immediate area of the railroad crossing. Mr. Seidel had been using this route to work for the 32 years he had been employed by the F. & M. Schaefer Brewing Co. Seidel drove up to the tracks and stopped his vehicle. After stopping and looking both ways, he proceeded to cross the tracks, at which point his truck was struck by a railroad engine. Seidel testified that he saw no lights on the engine and that he heard no horn or bell. As a result of the collision, Seidel was injured and his truck damaged. The crossing was not protected by active warning devices; the only warning device located at the scene was a crossbuck sign, located on the right side of the northbound traffic on Conkling Street.

The Seidels called Mr. Hugo Liem, Jr., Commissioner of the Department of Transit and Traffic of Baltimore City, who was appointed to the post in 1969, and held the post at the time of the accident in question, February 7, 1973. At the time of the accident, the Department of Transit and Traffic did not maintain any records, documents or memoranda with reference to (1) the number of railroad tracks present at the Conkling Street crossing; (2) the usual or general speed of rail traffic over that set of tracks; (3) the number and frequency of trains using the crossing; (4) the topography or general type of location surrounding the tracks; (5) the frequency of vehicular traffic over the tracks; or (6) the types of signaling, warning or sign devices present at the crossing. Mr. Liem testified that the Department of Transit and Traffic keeps, for a period of time, the records developed by the Police Department with regard to the number and character of accidents. While the Department of Transit and Traffic maintains a "worst corner" list, no railroad crossings were on that list.

The Seidels also called George E. Frangos, an expert in the area of traffic and transportation safety. He gave an opinion that the railroad crossing near the intersection of Boston and Conkling Streets was inherently unsafe and hazardous because of a lack of a proper warning device and because: (1) there was insufficient lighting in the area of the crossing; and (2) the presence of a utility pole in the vicinity of the crossing constituted a visual obstruction to the motorist northbound on Conkling Street looking west for approaching trains. ¹

Frangos further testified that he studied the accident frequency of the crossing in question. Based on records kept by the Baltimore City Police Department he was able to determine that there had been four accidents at the crossing over a five year period. He further testified that based on a national study of 5,541 crossings controlled only by a crossbuck sign, there existed the probability of one accident occurring every ten years. We quote a portion of his testimony:

"Q. In the course of your study and investigation and the analysis of this railroad crossing, can you describe to the ladies and gentlemen of the jury, please, Mr. Frangos, what factors you considered that went into your analysis in this case? A. The standards for the marking and control of railroad grade crossings are rather pretty generally well known to the traffic engineering profession. They're contained in the traffic engineering handbook. They're contained in publications of the American Association of Railroads who in turn provide the same input to the manual Uniform Traffic Control Devices. That is a document produced by the U.S. Department of Transportation that represents a national standard for the controlling regulation of traffic through signing, pavement marking and other control devices.

"Q. What is an advance warning sign? A. It is simply a black on orange informational sign that has railroad crossing ahead indicator on it. There is a pavement marking that is placed in the approach to the grade crossing that has if you pardon me I will refer to my report. It has an X emblem painted on the street or the roadway approaching the grade crossing with the initials R-R on either side of this crossing. And at the immediate vicinity of the railroad tracks you have a white mark extended across the pavement to indicate where a vehicle should stop to look down the railroad tracks and see if a train is coming. The advance sign also alluded to an X on it with a R-R on it of course. Of course on the railroad property itself should be the crossbuck with the term railroad crossing on it. In many cases they even identify the number of tracks that are on the crossing.

"As the hierarchy extends you have wigwag signs wigwag symbols. Excuse me. They're two pendant shaped devices that sit at a V-shape and when a train is coming down they wave back and forth.

"Q. How are these operated? A. Electronically. A train coming down the track activates a device and it sets the wigwag device into action.

"Q. That is a device that indicates that a train is approaching? A. That's correct.

"Q. What other devices are available? A. Flashing lights.

"Q. How do flashing lights work? A. When a train approaches the intersection they start flashing and warning the drivers that a train is coming.

"Q. Anything else that would be available? A. The highest type is a gate, a gate that literally drops down. These days in these cases they are done automatically and restrains a vehicle from crossing the railroad tracks.

"Q. That's the same type of protection that was present at this scene? A. That's correct (a crossbuck sign). It deduced, based on this national study, that the probability of an accident occurring at this type of control was .103. This means one accident every ten years. That was assigned a relative hazard evaluation of one.

"Q. Other devices also studied in this study? A. The next device looked at was stop signs. They analyzed 728 crossings across the country that had this type of protection. Probability of an accident occurring here was .06 which means one accident every sixteen years. That had a relative hazard of .58. This means applying a stop sign at a railroad you cut that relative hazard in half.

"Q. Go on. A. Now, for the wigwags, which I described, they analyzed 303 intersections. Excuse me. 303 railroad grade crossings across the country. The probability of an accident at this type of control was .035, which means an accident once every thirty years.

"Q. Every thirty years? A. Thirty years.

"Now, the next protection type we come to is flashing lights. They analyzed 795 grade crossings across the country that had flashing lights. And the probability of an accident at this type of control was .021. That means an accident once every fifty years.

"Q. With flashing lights? A. With flashing lights. And the relative hazard here was .2, which means it is five times more effective.

"Q. Than what? A. Than the crossbuck. And, finally, gates. These are gates of all types. They analyzed 128 crossings across the country. Came up with a probability of .011, which means one accident every one hundred years. This was deduced to be ten times effective than simply a crossbuck."

Appellant argues that there was no evidence to show that Article 20, §§ 13-15(c) of the Baltimore City Code (1968 ed.) ² were violated by the City. We disagree. The testimony of Mr. Hugo Liem, Jr. showed that he, as the Commissioner involved, did not keep the records nor make the studies required by the ordinance. If he had kept the required records and made the required studies the expert testimony shows that a different warning device should have been installed.

The City, further argues that, assuming there was a violation of the ordinance, the evidence was legally insufficient to show that the violation of the ordinance was the proximate cause of the injury. The City relies primarily upon Austin v....