Pennsylvania R. Co. v. Yingling

• Decision Date: 17 April 1925
• Docket Number: 5.
• Citation: 129 A. 36,148 Md. 169
• Parties: PENNSYLVANIA R. CO. v. YINGLING.
• Court: Maryland Court of Appeals

129 A. 36

148 Md. 169

PENNSYLVANIA R. CO. v. YINGLING.

No. 5.

Court of Appeals of Maryland

April 17, 1925

Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.

"To be officially reported."

Action by Charles E. Yingling against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and WALSH, JJ.

Charles H. Carter, of Baltimore (Bernard Carter & Sons, of Baltimore on the brief), for appellant.

Robert D. Bartlett, of Baltimore (Bartlett, Poe & Claggett, of Baltimore, William P. Cole, Jr., of Towson, and Duncan & Schwatka, of Baltimore, on the brief), for appellee.

PARKE J.

The accident in this case occurred where the public highway known as the Beaver Dam Road is crossed at grade near Cockeysville by three tracks of the Pennsylvania Railroad Company, running north and south, and at right angles with the highway. The approach to the crossing from the east is slightly downgrade while the crossing is level, and the highway has a downgrade west of the tracks. As you approach the railroad crossing from the east, the view of the railroad to the north or right is unobstructed, but the situation is different on the left or south, which is in the direction of Baltimore. The view to the south is obstructed, first, by a frame dwelling facing the highway, and then by a large globular shaped tree, with compact and dense foliage, whose limbs are close to the surface of a slight embankment along the railway. The trunk of the tree is off the appellant's right of way, and about 24 feet from the nearest rail of the tracks. The house the tree, with its low-hanging branches, and some bushes shut out the view to the south completely until the line of sight cleared the western outlines of the tree.

The appellee testified that he could not obtain a view of the track to the south from his truck until he was at a point in the roadway 10 feet from the east rail of the north-bound track, which would put the front of the truck wheels 5 feet away from this rail. It does not appear that the appellee made any actual measurements, and other witnesses estimated this distance to be 15 or 18 feet. A photograph taken at 15 feet escapes the obstruction of the view, but at 16 feet the view is shut out. As the lens of the camera is not as high from the ground as the eyes of the truck driver, it is quite probable that the true distance is not quite 15 feet because of the rounded contour of the tree, although the engineer estimated the distance of the truck from the crossing, when he first saw it coming from behind the tree, as 15 feet.

It was a dangerous crossing, and for many years an electric crossing bell or gong had signaled a warning for the approaching. train. This bell was of the standard type, 12 inches in diameter, and was at the top of an upright metal piece from 7 to 8 feet high, which was located on the west side of the tracks and near the south line of the highway, and 40 feet from the east rail of the north-bound track. In addition to the bell, the appellant had for some years provided two watchmen, who had a watchman's box along the side of the crossing bell. At the approach of a train the bell would sound, and the watchman, during the period of his duty, would step out in the highway with his warning sign. He would not be in the roadway unless a train was approaching. The watchmen were on duty at the crossing only during the daytime, and, until June 25th, 1921, one began at 6 o'clock in the morning, and a watchman was kept on duty continuously until the same hour in the afternoon. The appellant, with the closing of the schools, relieved one of the watchmen, who was on duty from 2 to 6 o'clock, and kept the other watchman, whose new hours were from half past 7 in the morning to half past 3 in the afternoon. This change took place on June 25th, 1921, and was in operation on the day of the accident. The testimony was that the effect of this change was to have the watchman on duty during those hours when the train movement was heaviest. The change increased by 4 hours the period during which the bell was the sole method of warning. The bell started to ring for a north-bound train when it was 3,500 feet from the crossing, and did not stop ringing until the rear end of the train had cleared the crossing.

The accident happened on July 14, 1921, at about quarter of 5 in the afternoon. The express train, known as the Chicago Limited, made up of engine, tender, and four coaches, was traveling on schedule time, at about 38 miles an hour and had reached a point about 70 or 80 feet from the crossing when the engineer saw the appellee drive from behind the tree towards the Beaver Dam crossing. The engineer applied the brakes, but of course the train could not be stopped in time, and the right front corner of the pilot bumper struck the truck at the front wheel. The air brake on the engine was released because the collision had broken off some of the air pipes on the engine, but the brake on the cars was not affected, and the train was stopped, but not so quickly. The pilot was torn loose from the engine, letting the cowcatcher drop on the track. The appellee was injured, and he was picked up unconscious, 75 or 80 feet north of the crossing.

As the regulations of the appellant did not require it, the whistle was not blown for the crossing, but the trainmen testified that the engine bell was rung, although neither the appellee nor any other witnesses heard it. There is no question, however, that the crossing bell was in good working order, and rang the alarm for the approaching train. The appellee testified that he did not hear the ringing of the bell, and attributed his failure to the noise made by the movement of his heavy truck, with side boards, over the rough surface of the road.

The appellee, Charles E. Yingling, 47 years of age, was born in the neighborhood of the crossing, and had been familiar with it for 30 years, having traveled over it frequently. He was employed by the Beaver Dam Quarry Company as a motor truck driver, and had been running a truck back and forth over this crossing nearly every day for almost 4 years before the accident. On some days, he used the crossing two or three times daily. He knew that the crossing bell was there, and for what purpose, and knew it worked. All of the material circumstances have been stated except the appellee's own description of the accident, which will now be given.

The plaintiff was driving a 5-ton Packard truck westward along the Beaver Dam Road on July 14, 1921. He stopped at the entrance of York Road, which was 300 feet east of the crossing, and then started forward. He took the emergency off his truck, and let it drift down the slight grade to the crossing. He described the accident in this way:

"I was just looking out, looking and listening for the bell, and I was looking for the watchman, and I just pulled my emergency brake up every once in a while, just going slow, almost creeping along. I was not going over 3 miles an hour. I will testify to that on a stack of Bibles as big as this building, and I was holding my emergency, just going slow as I could. I looked for the watchman and seen no watchman. I thought everything was all right; there was no watchman there--no watchman out. I thought to myself, well, he is in the box. I just took the reverse brake off--the emergency brake off, and just kept on drifting. That is the last I knowed. I never knowed no more until I woke up in the hospital."

To the question what was he looking for, this answer and testimony was given:

"A. Looking for the watchman, and listening for the bell. You could not look south of the Beaver Dam Road down the railroad track on account of the house and the tree. The tree is so thick and hung so low there that you practically had to get within say 4 or 5 feet of the railroad track. I was sitting 5 feet behind my wheels in the truck, and that throwed the wheels 5 feet ahead of me, when I was about, I suppose, pretty near on the track, before I could myself see down the track.

Q. You say you were looking. Do you mean you were looking up and down the track? A. No, sir; I was looking for the watchman. I knowed the watchman was always there, and I knowed when the watchman was not out with his stop stick, everything was clear; and I listened for the bell and heard nothing--could not hear a thing.

The Court: Where was the bell?

The Witness: That bell, your honor, is on the opposite side, the west side of the railroad track, and I was on the east side of the railroad track; there are three tracks there between the west side and the east side. You see, that is a right good distance for the bell to be away over here, and I was away over there, and I suppose the noise of the train and the noise of the truck--you cannot hear a thing; you cannot hear the bell on the east side of the track with a touring car, and that don't make near the noise that a truck does going over rough roads.

* * * Q. (by Mr. Schwatka): Did you hear or see a train coming on this particular trip? A. No, sir."

The appellee closed his testimony by stating that he was moving so slowly towards the crossing that he could have stopped the truck in 8 feet.

The verdict was in favor of the appellee for $2,500, and from the judgment on this verdict the Pennsylvania Railroad Company has appealed. There is only one exception, and it is to the action of the lower court on the prayers.

The appellee's theory was that the removal of the crossing watchman, under the circumstances narrated, without the appellee's knowledge, made the watchman's regular absence equivalent to an invitation by the Railroad Company to the appellee to cross under an...