State, for Use of Emerson, v. Poe

• Decision Date: 12 February 1937
• Docket Number: 67.
• Citation: 190 A. 231,171 Md. 584
• Parties: STATE, FOR USE OF EMERSON, v. POE ET AL.
• Court: Maryland Court of Appeals

190 A. 231

171 Md. 584

STATE, FOR USE OF EMERSON, v. POE ET AL.

No. 67.

Court of Appeals of Maryland

February 12, 1937

Appeal from the Circuit Court, Frederick County; Hammond Urner Arthur D. Willard, and Charles W. Woodward, Judges.

Action by the State, for the Use of Bessie L. Emerson, mother of Pearl V. Emerson, infant, deceased, against Howard R. Poe and the Baltimore & Ohio Railroad Company. From a judgment for plaintiff as against the first-named defendant only and for the second-named defendant, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, SHEHAN, and JOHNSON, JJ.

J Lloyd Harshman and Robert H. McCauley, both of Hagerstown (Ellsworth R. Roulette, of Hagerstown, and William M. Storm of Frederick, on the brief), for appellant.

William P. Lane, Jr., of Hagerstown, and Parsons Newman, of Frederick (Joseph D. Mish, of Hagerstown, on the brief), for appellees.

PARKE Judge.

The action brought in the appeal at bar is for the use of the mother of Pearl V. Emerson, a young girl of sixteen years, who, while riding as a passenger for hire in a motorbus of Howard R. Poe, was killed by the collision of the bus and a through express train of the Baltimore & Ohio Railroad Company, a public carrier, at a highway railway crossing in Rockville. The defendants are the owner of the motorbus and the railway corporation. The case against both defendants was submitted to the jury which rendered a verdict against the owner and one in favor of the corporation. The appeal is taken by the plaintiff.

The plaintiff asserts there is error in the adverse rulings on the testimony and the prayers; and the railroad company, one of the defendants, maintains the case should have been taken from the jury on its two refused prayers on the theory that no primary negligence was shown on the part of the corporation. At the outset, it may be said that there was sufficient negligence shown on the part of the driver to charge the owner of the motorbus with legal responsibility for the accident. Furthermore, the young woman killed was a passenger for hire, who was without fault, and the negligence of the driver was not imputable to her. Philadelphia, W. & B. R. R. Co. v. Hogeland, 66 Md. 149, 7 A. 105, 59 Am.Rep. 159; Baltimore, etc., R. Co. v. Turner, 152 Md. 216, 228, 136 A. 609.

Under a local statute of Frederick county, where the case was tried, the exceptions reserved by both sides are for review on appeal, but not necessarily so when there is a reversal without a new trial. Code of Public Local Laws (Flack) art. 11, §§ 84-86. Ehrhart v. Board of Education, 169 Md. 668, 182 A. 424. So, the chief questions are whether the testimony tended to show primary negligence on the part of the carrier, and, if so, was that question properly submitted to the jury by the granted prayers. There are also some subsidiary rulings on the testimony for consideration.

Howard R. Poe is a carrier for hire in the operation of motorbusses for the transportation of school children over the public highways of the state. While so engaged, his agent, on April 11, 1935, drove a motorbus from Williamsport, Washington county, along a public highway, which crossed at grade in the municipality of Rockville, Montgomery county, the double railway tracks of the Baltimore & Ohio Railroad Company, a steam railway company engaged in the transportation of passengers and freight for reward. The long bus was filled with twenty-seven high school children in the care of their teacher. They were on their way to College Park and reached, in the late afternoon, the south side of the railway crossing at Rockville and drove northward to their destination where they were to see a chemistry show and attend a lecture. The bus left Williamsport at 4:45 p. m. and arrived at College Park at 7:15 p. m.

After the close of the program at College Park, the bus and its passengers returned by the route they had come. The driver was on the left front single seat operating the bus. An aisle ran down the center the length of the bus with seven seats for two passengers on either side. The seats were occupied by two of the pupils on every seat, except one on which the teacher sat, with two of her pupils, back of the driver. Pearl Emerson was on the last seat, next to the window, on the left side. The fifth window on the left of the bus was partly open, as probably was another. The entrance to the bus was by a door, with a glass window, on the right side opposite the driver's seat. There was a window on the left opposite to the driver's seat and back of this window and the door on the right were a line of windows on each side of the bus.

The party left College Park about half past 10 o'clock at night. It rained intermittently and as the bus approached the railway crossing it was drizzling enough to require the wiper of the windshield to be used. The driver had wiped off the moisture which had condensed on the windshield in the interior of the bus, and except for the space in front of the driver which was kept clear by the automatic wiper on the outside and by the driver on the inside, the rest of the windshield and the closed windows were covered with rain or moisture which obscured the vision.

The headlights of the bus were burning. After leaving College Park, the bus had been operated at a moderate speed, and the driver, who observed that he was approaching the railway crossing at Rockville, reduced the speed to 10 or 12 miles an hour. He did not stop, but drove the bus at this speed south on the railway crossing. The driver increased the speed while on the crossing, and the bus had gone over the first or north and westbound track and had partly cleared the second or south and eastbound track when a fast, through train, which was running east on the south track, on time, and at the rate of 58 to 59 miles an hour, struck, on the crossing, the bus on its right side, about 3 feet from its rear. Eight children on the right rear seats of the bus, and six on the left rear side were killed. Pearl V. Emerson was among them.

The accident occurred at about half past 11 o'clock. The teacher was awake and so were some of the students. They had traveled far and it was late. There was no singing, nor loud noise, nor was any one talking to the driver, and every one was seated. So, the passengers were doing nothing to divert the attention of the driver in the operation of the bus.

The driver knew of the railway crossing. The first notice he had of its proximity was given by the state highway commission, which had caused to be erected its standard railway crossing sign on the west side of the highway, so as to confront the traveler on the right lane of travel with a timely warning. From this point, as the bus continued to move southward towards the railway crossing, there were no buildings on the right or west of the highway to obstruct the view of the railway tracks to the west of the crossing, except a shed for waiting passengers and a tool shed. The passenger shed was 189 feet, and the tool shed 775, west of the western edge of the macadam of the highway. Both sheds were about 14 feet from the northernmost rail of the tracks, and were built parallel with the railway. The passenger shed fronted 26 feet on the railway tracks, and was 9 feet wide and 10 or 11 feet high. The tool shed faced 28.5 feet on the tracks and was 10 feet 4 inches wide.

On the driver's right as he went south there was, along the west side of the highway, a bank whose crest along the highway was from 4 to 5 feet until near the railway right of way it sloped abruptly to a level strip about 14 feet wide which extended westward along the northern rail of the westbound track. The general slope of the ground west of the highway was toward the railway, the surface was higher north of the passenger shed than at the roadside. The railway tracks west of the crossing extended 1,150 feet in a straight line and then went towards the north on a curve into a railway cut. The distance between the north rail of the westbound track and the north rail of the eastbound track is 13 feet.

The effect of these physical conditions was that between 63 and 26 feet from the north rail of the westbound track the approach of a train west of the passenger shed could be observed as it came out of the railway cut when the observer was looking west back of the passenger shed in line with the opening between the two sheds, which, according to the testimony, would be momentary. At this station of 26 feet, the traveler's line of vision would extend diagonally in front of the passenger shed 525 feet west of the crossing along the eastbound track. From the 26-foot point in the highway southward the view back of the waiting station to the west was obstructed for 12 feet by the intervening width of the end of the station, so that the only portion of the track which was visible was included between the crossing and the intersections of the tracks by the prolongation of a line from the eye of the observer and the southeast corner of the passenger shed. As the observer moved southward, the view west was gradually extended beyond the 525-foot point until when, at a distance of 14 feet from the northbound rail of the westbound track, his vision was no longer obstructed to the west, by the side of the shed, and he had a clear view of the straight tracks to the west of at least 1,150 feet and 300 feet beyond on the curve.

On the west side of the highway and north of the crossing there was an upright post, with cross-arms. Diagonally opposite, on the east side of the highway and south of the crossing were a similar post and cross-arms. Below the cross-arms was a signboard parallel with the railway track and perpendicular to the highway. All were...