State for Use of Landis v. Baltimore & O.R. Co.

• Decision Date: 07 December 1950
• Docket Number: No. 36,36
• Citation: 196 Md. 459,77 A.2d 2
• Parties: STATE for use of LANDIS v. BALTIMORE & O. R. CO.
• Court: Maryland Court of Appeals

Page 459

196 Md. 459

77 A.2d 2

STATE for use of LANDIS v. BALTIMORE & O. R. CO.

No. 36.

Court of Appeals of Maryland.

Dec. 7, 1950.

James Alfred Avirett, Cumberland (W. Earle Cobey, Cumberland, and John Wagaman, Hagerstown, on the brief), for appellant.

William A. Gunter, Cumberland, and E. Stuart Bushong, Hagerstown (D. Lindley Sloan, Cumberland, and Irvine H. Rutledge, Hagerstown, on the brief), for appellee.

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

HENDERSON, Judge.

This appeal is from a judgment for the defendant, entered after the court directed a verdict for the defendant, in a case involving the death of a pedestrian at a railroad grade crossing in Cumberland. The scene of the accident was the Harrison Street crossing, the second crossing east of Baltimore Street. The street runs north and south and is 51 feet wide, paved but traversed by nine sets of tracks, which are 150 feet across. Counting from the north, tracks numbers 1, 2, and 3 are for passenger trains, number 4 is an eastbound freight track, numbers 5, 6 and 7 are yard tracks, and numbers 8 and 9 are sidetracks.

At about 6:20 P. M. on November 23, 1945 the decedent Landis, 69 years of age, approached the crossing from the north on the easterly side, on the way from his home to the business section. He used the crossing daily and was thoroughly familiar with it. It was a dark and windy night. There was a watchman, Vandergrift, standing facing south between tracks numbers 2 and 3 in the center, holding up a red lantern. There was an engine with its tender standing on track number 4 about 12 feet to the east of the easterly side of the crossing. A brakeman, named George, was standing on the easterly edge of the crossing in front of this engine on track number 4. There was a backing freight train approaching the crossing from the east on track number 6 at a speed of 4 or 5 miles per hour. This train was over 1,000 feet in length composed of 24 freight cars with a caboose on the end; the switching operation in which it was engaged occurred daily at about this same time. The track bends sharply to the south just to the east of the crossing, so that the engineer had no view of the crossing. A flagman, Hoyle, was stationed at the crossing with red and white lanterns. With the former it was his duty to warn traffic; the latter was used to give stop, or emergency stop, signals. Because of the great length of the train, the conductor was stationed on a box car to the east on track number 7. He in turn relayed stop signals to the brakeman, who in turn signalled the engineer. Hoyle was in the center of the crossing between tracks numbers 7 and 8 facing north, holding up his red lantern.

Landis paid no attention to the warning signals. He proceeded south on the easterly side of the crossing until he reached a point on track number 4, about 40 feet from Hoyle, where he began to run across in front of the approaching caboose. Hoyle yelled to him 'Hey, Stop' and 'Look out.' Landis did not stop, but continued to run forward, diagonally across to the southwest, in front of the backing caboose. He was struck by the northerly side of the rear of the caboose about the center of the crossing, and knocked down. Before the train was stopped the northerly wheels of the caboose and the wheels of two and one-half of the freight cars passed over him. His body was lying from 3 to 10 feet from the westerly edge of the crossing after the train stopped, with the rear of the caboose about 130 feet west of his body.

Hoyle testified that when he saw the decedent running in front of the caboose he immediately gave the emergency stop signal with his white lantern. He was asked why he did not climb on the caboose and apply the emergency brake there. His reply was that he 'figured I could get him stopped quicker by a hand signal.' As a matter of fact, it appears that the train was stopped by the action of the brakeman, George, rather than by the engineer. When George heard Hoyle yelling to the decedent, and saw the latter run past him, he tried to grab him; his glove touched his clothing. George was about 30 feet from the center of track number 6 at that time. Failing to catch the decedent, George ran between the freight cars and broke the air-hose. This brought the train to a stop in 3 or 4 feet.

The appellant earnestly contends that the railroad company was negligent in backing the train over a public crossing without having any member of the train crew stationed on the caboose, in a position to apply the...