State, to Use of Creasey v. Pennsylvania R. Co.

• Decision Date: 21 May 1948
• Docket Number: 152.
• Citation: 59 A.2d 190,190 Md. 586
• Parties: STATE, to Use of CREASEY et al. v. PENNSYLVANIA R. CO.
• Court: Maryland Court of Appeals

59 A.2d 190

190 Md. 586

STATE, to Use of CREASEY et al. v. PENNSYLVANIA R. CO.

No. 152.

Court of Appeals of Maryland

May 21, 1948

Rehearing Denied July 20, 1948.

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

Consolidated actions by the State, to the use of Willie Klepper Creasey May Ruth Brewer, one Townsend, one Doane, one Gittings, Otho Miles, Alton Miles, and one Niskey, respectively, against the Pennsylvania Railroad Company, for the death of Edward Samuel Brewer and injuries to plaintiffs other than May Ruth Brewer as the results of a truck, in which such plaintiffs and decedent were riding, being struck by defendant's train. Judgments for defendant, and plaintiffs appeal.

Reversed and remanded for a new trial.

Frederick W. C. Webb and Amos W. W. Woodcock, both of Salisbury (E Dale Adkins, Jr., and Woodcock, Webb, Bounds & Travers, all of Salisbury, on the brief), for appellee.

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

HENDERSON, Judge.

After the decision of this court in Penn. R. Co. v. State, use Brewer, Md., 53 A.2d 562, 567, that case and seven other cases arising out of the same crossing accident at Fruitland Maryland, on February 5, 1945, were consolidated and tried before the court and a jury, in the Circuit Court for Wilcomico County. From judgments upon separate verdicts for the defendant in each case, the cases come here on appeal. The appellants' chief contentions are that the trial court erred (1) in rejecting certain prayers offered on behalf of the plaintiffs, (2) in granting certain prayers offered on behalf of the defendant, (3) in the admission of certain evidence.

In our opinion in the former appeal we described the accident in detail. Just about dawn a southbound freight train, engaged in a switching operation, blocked the crossing and caused automatic warning signals, flashing red lights, to be set in motion. A line of motor vehicles was halted on the west side. The engine then backed to the north, clearing the crossing and the vehicles started across. Johnson's truck, the fourth in line, was struck by a northbound train. The plaintiffs in that case charged negligence on the part of the defendant (1) in the conduct of the switching operation and (2) in the operation of the northbound train. We held that it was reversible error not to instruct the jury that there was no legally sufficient evidence from which the jury might find negligence in the operation of the northbound train, because 'according to the undisputed testimony the engineer sounded his whistle and bell, the brakes were in proper condition, and he stopped as soon as he could after he became aware that the truck was in a position of danger.'

We held, however, that the case was properly submitted to the jury upon the first issue as to negligence in the conduct of the switching operation. We held that certain rules of the defendant relating to switching operations were properly introduced in evidence, along 'with testimony designed to show a violation of the rules, in that no flagman was left at the crossing when it was temporarily cleared.' We pointed out that the plaintiffs '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.' We also said: '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.'

We find nothing in the record in the case at bar to require any qualification of the foregoing analysis of the situation. However, there was additional testimony in the present case bearing upon the issue of contributory negligence. The truck in question was a Chevrolet panel truck, with longitudinal seats behind the driver's seat, and no side windows, except those on each side of the driver's seat. On the front seat were Johnson, the driver, Townsend and Creasey. On the right side in the rear, were Doane, Brewer and Gittings. On the left side were Otho Miles, Alton Miles and Niskey. There were two other occupants on the rear seats who are not parties to this litigation. Otho and Alton Miles were asleep.

Niskey testified that when the truck came to a stop, he saw Johnson put his elbows on the wheel and his hands under his jaw; that Johnson never looked to his right before driving on the tracks, although for a space of at least 30 feet the view was unobstructed; that Johnson followed the other cars across the tracks, and as they came to the southbound tracks, Doane and Creasey suddenly called out to Johnson 'watch out for that train,' or 'watch that train, Harvey.' The witness could not see out of the truck, except straight ahead. He testified he heard no whistle or bell, did not listen for any, as he was not paying attention. He was aware of the stopping and starting of the truck, and saw the flashing signals continuously in operation.

1. Plaintiffs' prayer No. 1, offered in 'all cases,' asked the court to instruct the jury that there was no evidence legally sufficient to show any negligence on the part of Brewer, Townsend, Otho Miles, Creasey, Gittings, Alton Miles, Doane and Niskey, directly contributing to the injuries and deaths complained of. It is not contended that the driver's negligence, if any, could be imputed to the passengers, who were Johnson's employees, or that the negligence of any one passenger could be imputed to another. Technically the prayer, in its composite form, could not have been granted if there was legally sufficient evidence of negligence on the part of any one of the several plaintiffs. For the purpose of this appeal, however, we shall treat the prayer as if it had been offered severally in each case.

The general rule was stated in Baltimore C. & A. R. Co. v. Turner, 152 Md. 216, 228, 136 A. 609, 614: 'One riding whether as an invited guest in a private car, or as a passenger in a public conveyance, such as a taxicab, cannot under all circumstances be expected to be constantly on the lookout for possible danger, and to distract and confuse the driver by a steady flow of warning admonitions, but he is entitled to rely to some extent at least upon the vigilance of the driver, if he appears to have ordinary skill and experience. If, however, the passenger knows, or should as a reasonably cautious and prudent person know, that danger may follow the operation of the car in a particular manner or in a particular course, it is his duty to take such measures as may be open to him to avoid it, and he is guilty of negligence if he fails to do so. And the place which a passenger occupies in an automobile is also important in determining whether he exercised reasonable care and prudence to detect and avoid danger, for one on the front seat with the driver may have a far better opportunity of discovering any danger ahead in the course of the car than one on the back seat. And whether under the circumstances of a given case the failure of a passenger to discover danger and to do what he can to avoid it is negligence or not is usually a question for the jury.' See also Dashiell v. Moore, 177 Md. 657, 672, 11 A.2d 640.

The cases in which this court has approved the granting of a peremptory instruction for the plaintiff on the issue of contributory negligence are distinguishable from the instant case. In Garozynski v. Daniel, Md., 57 A.2d 339, 341, the plaintiff, while standing beside his parked car, was run down by a car coming diagonally across the street from the opposite direction. In Montgomery Bus Lines v. Diehl, 158 Md. 233, 237, 148 A. 453, 455, the plaintiff was a passenger in a car struck from the rear when it made a sudden stop. It was said: 'negligence by a passenger, not herself driving, which would defeat her recovery, must be, in effect, a uniting with the driver in incurring the resulting danger, and it involves an opportunity at least to acquiesce in the negligent action. And we do not see how a jury could find such an opportunity in the single, quick, momentary actions of failing to hold out the hand and stopping too suddenly.' Compare Greer Transportation Co. v. Knight, 157 Md. 528, 539, 146 A. 851, 855, another rear-end collision case. In United Rys. v. Biedler, 98 Md. 564, 572, 56 A. 813, the plaintiff (guest) saw the driver stop, look and listen before driving on a street car track. His own view was obstructed. It was held that no inference of negligence contributing to the accident could be drawn.

On the other hand, in United Rys. v. Crain, 123 Md. 332, 350, 91 A. 405, it was held that a peremptory instruction was improperly granted, where the guest failed to warn the driver that he was approaching a crossing. And in State v. Lupton, 163 Md. 180, 192, 161 A. 393, 398, it was said: 'What was said in those cases [Baltimore C. & A. R. Co. v. Turner, supra; Kent County Com'rs v. Pardee, 151 Md. 68, 76, 134 A. 33, and Montgomery Bus Lines v. Diehl, supra] has reference to unexpected dangers encountered on the highways and not to such dangers as everyone crossing a railroad track, passenger as well as driver, is bound to look out for.' See also Restatement, Torts, § 495(c), and Bastian v. B. & O. R. Co., 3 Cir., 144 F.2d 120, 124. Compare Valera v. Reading Co., 349 Pa. 123, 36 A.2d 644, 646.

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