Pennsylvania R. Co. v. State

• Decision Date: 11 June 1947
• Docket Number: 148.
• Citation: 53 A.2d 562,188 Md. 646
• Parties: PENNSYLVANIA R. CO. v. STATE et al.
• Court: Maryland Court of Appeals

53 A.2d 562

188 Md. 646

PENNSYLVANIA R. CO. v. STATE et al.

No. 148.

Court of Appeals of Maryland

June 11, 1947

Appeal from Circuit Court, Wicomico County; W. Laird Henry, Jr. Chief Judge, and Levin C. Bailey and Edmond H. Johnson Judges.

Suit by the State of Maryland to the use of May Ruth Brewer, and others the minor children of Samuel Brewer, deceased, the children having Maude Irene Gibbons as their legal guardian and to the use of the Employers Liability Assurance Corporation against the Pennsylvania Railroad Company to recover for the death of the father of the minor children when a truck in which he was riding was struck by defendant's train, wherein defendant filed a demurrer. From a judgment for plaintiffs, defendant appeals.

Reversed and new trial awarded.

Amos W. W. Woodcock and Fred W. C. Webb, both of Salisbury (Woodcock, Webb, Bounds and Travers, of Salisbury, on the brief), for appellant.

Ernest C. Clark and Charles E. Hearne, Jr., both of Salisbury (Michael Paul Smith, of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

Edward Samuel Brewer, an employee of Harvey Johnson, was killed while riding in a truck driven by his employer, when the truck was demolished by a railroad locomotive at a grade crossing at Fruitland, Wicomico County, Maryland, in the early morning of February 5, 1945. The decedent was a widower, 48 years of age. His three minor children brought suit in the name of the State against the Railroad Company, in which they were joined by the Employees Liability Assurance Corporation, insurer of Johnson under the Workmen's Compensation Act, as a third party plaintiff. After a demurrer to the declaration had been overruled, the case came to trial before a jury in the Circuit Court for Wicomico County, resulting in an apportioned verdict for $12,859.89.

The facts alleged in the declaration and brought out in the testimony are somewhat unusual and, in the main, undisputed. Brewer had been employed by Johnson on the day previous to the accident, and was being transported to his place of employment, at the time of the accident, in a Chevrolet panel truck with longitudinal seats on both sides, and no side windows. Brewer was seated on the right side. There were 10 persons in the truck in addition to Johnson, the driver. The highway at Fruitland runs East and West, crosses the defendant's double track right of way at a right angle, and is 30 feet wide with 4 foot sidewalks on each side.

Approaching the tracks from the west, the view to the north is unobstructed; to the south, however, the view is obstructed by a post office building 30 feet from the west rail of the Southbound track, and by a tool house located opposite a freight station some 300 feet to the south. The tracks to the south are straight for a distance of over seven miles. There is another grade crossing 537 feet to the south, and a whistle post for both crossings 1,900 feet to the south. The main crossing at Fruitland is guarded by automatic blinkers which flash red warning lights whenever trains moving either north or south approach the crossing.

On the morning of February 5 a south bound freight train reached Fruitland at about 20 minutes to eight (Eastern War Time). It stopped about 21 feet north of the crossing and some of the cars were uncoupled. The engine, with some cars attached, then moved south, completely blocking the crossing, and later backed to the north, clearing the crossing, for the purpose of switching some of the cars to a siding. During all of this time the warning signals were automatically in operation.

While the train was blocking the crossing a line of motor vehicles was halted on the west side. After the engine had backed to the north, clearing the crossing, the motor vehicles proceeded to cross. Johnson's truck was the fourth car in line. When this truck reached the center of the north bound tracks it was struck by a train coming from the south, at a speed of some 45 miles per hour. This second train was a special work train, bringing employees from Cape Charles to Delmar. The engineer testified that he blew his whistle, had his automatic bell in operation, and his headlight burning. The weather was cloudy and it was dawn. As described by one witness, it was 'foggy, and between light and day.'

The engineer of the northbound train testified that he saw the switching operation on the southbound tracks, and the automatic blinkers in operation when he was over a mile from the crossing. He also saw three automobiles cross the northbound tracks from west to east, but did not see the Johnson truck. His fireman, who was on the west side of the cab, saw the Johnson truck 'as it nosed past the postoffice', and called to him to stop. He was then some 300 feet from the crossing. Although he immediately applied his brakes and closed the throttle, the engine hit the truck broadside and carried it some 900 feet to the north. Brewer and Johnson and five of the other occupants of the truck were killed, the others injured.

The plaintiffs, in their declaration and in their proof, sought to establish negligence on the part of the defendant (1) in the conduct of the switching operation, and (2) in the operation of the northbound train. In support of the first ground they offered in evidence, over objection, certain rules of the defendant relating to switching operations, and produced testimony designed to show a violation of the rules, in that no flagman was left at the crossing when it was temporarily cleared. They also produced testimony as to a custom or practice of the defendant to provide a flagman during switching operations, which were conducted daily at this point. They also produced testimony that the engineer of the southbound train had seen the northbound train coming before he backed up and cleared the crossing. In support of the second ground, they rely upon alleged excessive speed of the northbound train, and failure of the engineer to slow down or stop when he saw the potentially dangerous situation.

The four rules of the railroad company which were offered in evidence read as follows:

'Rule 2453. When freight trains or engines are standing in the vicinity of road crossings at times when other trains or engines are approaching, or are about to move over a road crossing, a trainman from the standing train or engine will protect the crossing when possible to do so. Enginemen and conductors must see that the train

is stopped at least three hundred feet away from the crossing whenever practicable.

'Rule 2450(5). When a train passes entirely over a highway crossing protected by automatic crossing signals, it must not move in the opposite direction over the crossing until protection is provided as prescribed in Rule 103-A.

'Rule 103-A. When a train is shifting over a public crossing at grade not protected by a watchman or gates, a member of the crew must protect the crossing unless otherwise provided.

'Rule 2450(7). When shifting movements are made in the vicinity of a highway crossing protected by automatic highway crossing signals, or when a train is stopped thereby operating the signals unnecessarily, every effort must be made by trainmen to avoid delay in highway traffic. When it is safe for vehicles or pedestrians to cross the track, the trainman will say, 'all right' and beckon to cross.'

The defendant concedes the adoption of these rules and their admissibility in general. State v. Baltimore & O. R. Co., 157 Md. 256, 145 A. 611. It contends, however, that they were inapplicable to the situation presented in the instant case, and hence not relevant. It argues that the freight train was not a 'standing' train within the meaning of Rule 2453, because in railroad parlance a 'standing' train is one completely coupled; that every member of the crew was employed and it was thus impossible to protect the crossing; and that the crossing was already protected by automatic crossing signals. We find no merit in these contentions. The expression 'standing train or engine' seems broad enough to include a separation of the train into sections. Moreover, the rules taken together seem clearly designed to afford protection, in the shape of a flagman, against the danger from other trains or engines as well as from switching movements. They recognize the need for a warning in substitution for the blinkers, which would be meaningless or inadequate in such a situation, as a warning of the approach of a second train. Whether it was possible or practicable to provide the substitute protection was a question properly left to the jury, in view of the testimony that there were five men in the train crew, and that a flagman had in fact been at the crossing during the initial stages of the switching operation, and that he left the crossing just before the engine backed to the north, clearing the crossing.

Nor do we find any merit in the defendant's contention as to the relevancy of the proof of custom. A number of witnesses testified that a flagman was always stationed at the crossing during the daily switching operations, and, in at least one instance, when another train was approaching during such operations. Three witnesses testified that a flagman was stationed there immediately prior to the accident, and climbed on the train when it moved to the north. Under such circumstances, the departure of the flagman might be construed as an implied invitation to cross. There was also direct testimony that the engineer saw the approaching train, but nevertheless cleared the crossing without leaving a flagman there.

The general rule applicable in such a situation is illustrated by section 301, comment f of the Restatement...