Roberts v. Maryland, Delaware And Virginia Railway Company

• Decision Date: 29 June 1914
• Citation: 91 A. 285,28 Del. 150
• Parties: EVANS ROBERTS v. MARYLAND, DELAWARE AND VIRGINIA RAILWAY COMPANY, a corporation of the State of Delaware. DAVID B. NAILOR'S ADMINISTRATORS v. THE SAME; and MARY A. NAILOR, widow, v. THE SAME
• Court: Delaware Superior Court

91 A. 285

28 Del. 150

EVANS ROBERTS v. MARYLAND, DELAWARE AND VIRGINIA RAILWAY COMPANY, a corporation of the State of Delaware. DAVID B. NAILOR'S ADMINISTRATORS v. THE SAME; and MARY A. NAILOR, widow, v. THE SAME

Superior Court of Delaware, Sussex County

June 29, 1914

Superior Court, Sussex County, June Term, 1914.

Three SUMMONS CASES (Nos. 11, 33 and 34 respectively, February Term, 1914) designated as the Lofland's Brickyard Crossing Cases, by Evans Roberts, by David B. Nailor's administrators, and by Mary A. Nailor, widow, respectively against the Maryland, Delaware and Virginia Railway Company.

On demurrers to the several declarations. Sustained as to some of the counts, and overruled as to others. The facts and questions of law presented appear in the opinion of the court.

Ruby R Vale of Philadelphia, Pa., and White and Tunnell of Georgetown, for plaintiff Roberts.

Daniel J. Layton, Jr., of Georgetown, and Caleb E. Burchenal, of Wilmington, for other plaintiffs.

Charles S. Richards for the defendant.

Judges WOOLLEY and RICE sitting.

OPINION

RICE, J.

The first action was brought by Evans Roberts, the plaintiff, against the defendant company, to recover damages resulting from a collision of an automobile, driven by David B. Nailor, in which the plaintiff was riding as a passenger, and a train operated by the defendant company, the collision having occurred at a point in Sussex County, known as Lofland's Brickyard Crossing.

The narr consists of seven counts, and to each count the defendant has demurred, either generally or specially.

The first count substantially alleges that the defendant company was engaged in the business of operating a railroad between the Town of Lewes and the Town of Milton in Sussex County, Delaware; that the railroad crossed the public road at grade, the crossing being a most dangerous one, for the reason that the public road going north approached the railroad at an angle, and a high bank upon which corn was growing obstructed the view of travelers on the highway going north from seeing trains on the railroad going west; that it was defendant's duty to give due and timely notice and warning of the approach of its trains to said crossing by sounding the whistle attached to the locomotive drawing the train. The plaintiff alleges that the defendant failed to perform its duty in this respect, and by reason thereof the plaintiff was damaged, etc.

To the count the defendant demurs, and contends that, in addition to the averment of failure to give warning to the plaintiff by blowing a whistle, it is necessary for the plaintiff to further aver that at the time no other warning was given of the approach of the train to the crossing.

As we understand the pleading, the plaintiff declares that it was the duty of the defendant to give plaintiff due and timely notice of the approach of its trains to the said crossing, and alleges that the defendant failed in its duty in this respect, and particularizes the failure by stating that it failed to signal the approach of the train by blowing the whistle attached to the locomotive. It will thus be seen that the plaintiff has negatived any other warning by the defendant of the approach of the train by alleging that due and timely notice was not given, and the rules of pleading do not require him to further set forth that he was not warned by a bell or some other signal. We are of opinion that the allegation by the plaintiff that it was the plaintiff's duty to give due and timely notice and at the same time disclosing the particular way in which it failed in this duty is sufficient, and that it is not necessary for the plaintiff to negative warning by any or all other methods by special reference thereto. The demurrer therefore fails and we sustain the first count.

The assigned cause of demurrer to the second count is that the following language is vague and uncertain of meaning:

"And because of the premises it was not then and there possible for the driver of an automobile approaching said railroad crossing, or a locomotive from the east, either one to see the other until the driver of the automobile had approached within a very few feet of the said crossing."

Evidently the plaintiff has intended to charge that it was not possible for the driver of an automobile approaching the said public road from the south and an engineer on a locomotive engine approaching said railroad crossing from the east either one to see the other until the driver had approached within a few feet of said crossing; but if such was the intention of the plaintiff, he has failed to use the proper language to give expression to this thought. As the count stands it is impossible to say from which direction the traveler on the highway was approaching the railroad crossing, when it was impossible for the engineer on the locomotive from the east and the traveler each to see the other. The traveler may have been approaching from the north or the south. If it was, when the approach was made from the north, that it was impossible for the traveler and engineer, as stated, each to see the other, it is not pertinent under the pleadings in this case; and if they were unable to see each other when the approach was made from the south, then the company is entitled to be so informed. The statement as pleaded is not sufficiently definite to inform the defendant with that which it is charged concerning the conditions surrounding the place of the collision. The demurrer to the second count is sustained.

The language employed by the plaintiff in the third and fourth counts, and demurred to, is substantially the same as in the second count, and for the reason stated in holding the second count insufficient, we sustain the demurrers to the third and fourth counts.

In the fifth count, the plaintiff states that:

"It was the duty of the said defendant to provide a flagman at said crossing to warn all persons being about to cross said railroad at said Lofland's Brickyard Crossing of the approach of all trains of said defendant company thereto."

It is thereupon charged that:

"The said company negligently failed to provide a flagman at the said railroad crossing to warn all persons being about to cross said railroad crossing * * * of the approach of all trains of the said defendant company thereto."

The defendant assigns as cause of demurrer to this count that there was no duty imposed on the defendant to station a flagman at the crossing in question. The question for the court's consideration and determination, therefore, is whether there is a duty, imposed by law, on railroad companies to station flagmen at railroad crossings where the view of travelers on the highway is obstructed from seeing an approaching train.

We accept as a principle of law so well settled as to be beyond dispute that a railroad company, in the absence of statute requiring it, is not obliged to keep a flagman at every crossing of the railroad and a public road. Controversies respecting the duty of a railroad to maintain a flagman arise only when the crossing is a peculiarly dangerous one.

It is also well established by innumerable authorities that at some crossings other warnings in addition to the statutory warnings will be required of a railroad under peculiar circumstances or on extraordinary occasions. A railroad company is required to operate its trains with the care and prudence which the peculiar circumstances of the place reasonably require. This is the rule of the common law and is also the law in this state.

In MacFeat's Adm'r v. P., B. & W. R. R., 5 Penne. 52, 62 A. 898, the court said:

"It is the duty of a railroad company to give timely and sufficient warning, by bell, whistle or otherwise, of the approach of trains, and to run its trains at a rate of speed proper and reasonable under the circumstances; and if the defendant failed to make use of such usual and appropriate means to warn the deceased at the time and place of the accident, it would be negligence on its part. * * *"

A railroad crossing ordinarily is a place of great danger, and if at the crossing there are obstructions of such a nature that a traveler on the highway approaching the crossing is prevented from seeing an approaching train, or if the peculiar conditions surrounding the crossing are of a nature that a traveler using due care and caution likewise is prevented from hearing the blowing of a whistle on the approaching locomotive, the danger of the crossing is increased, and the degree of care on the part of the railroad to warn travelers on the highway of the approach of trains is correspondingly increased. Knopf v. P., B. & W. R. R., 18 Del. 392, 2 Penn. 393, 46 A. 747; P., B. & W. R. R. v. Buchanan, 25 Del. 202, 2 Boyce 202, 78 A. 776; Trimble v. P., B. & W. R. R. (1913), 27 Del. 519, 4 Boyce 519, 89 A. 370.

With reference to the degree of care required of railroads at crossings, the court in Central Passenger Railway Co. v. Kuhn, 86 Ky. 578, 6 S.W. 441, 9 Am. St. Rep. 309, said:

"The doctrine with reference to injuries to those crossing the track of a railway, where the right to cross exists, is that the company must use such reasonable care and precaution as ordinary prudence would indicate. This vigilance and care must be greater at crossings in a populous town or city than at ordinary crossings in the country; so what is reasonable care and prudence must depend on the facts of each case."

In Grippen v. N.Y. Central, 40 N.Y. 34, the court used the following language:

"The greater the circumstances of difficulty in avoiding the train, in hearing its signals, in seeing its approach (howsoever they arise), the greater caution is devolved upon the railroad company in making that approach."

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