State v. Baltimore & O.R. Co.

• Decision Date: 17 April 1929
• Docket Number: 60. [a1]
• Citation: 145 A. 611,157 Md. 256
• Parties: STATE, TO USE OF PACHMAYR ET AL., v. BALTIMORE & O. R. CO.
• Court: Maryland Court of Appeals

145 A. 611

157 Md. 256

STATE, TO USE OF PACHMAYR ET AL., v. BALTIMORE & O. R. CO.

No. 60. ^[a1]

Court of Appeals of Maryland

April 17, 1929

Appeal from Baltimore City Court; Robert F. Stanton, Judge.

Action by the State, to the use of Isabelle M. Pachmayr and others the wife and infant children of John A. Pachmayr, deceased against the Baltimore & Ohio Railroad Company. Judgment for defendant on a directed verdict, and use plaintiffs appeal. Reversed, and new trial awarded.

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

William D. Macmillan and Edwin F. A. Morgan, both of Baltimore (Harold Tschudi, of Baltimore, on the brief), for appellants.

Duncan K. Brent, of Baltimore (Allen S. Bowie, of Baltimore, on the brief), for appellee.

URNER J.

The equitable plaintiffs are the widow and infant children of John A. Pachmayr, who was killed when a motortruck driven by him was struck by a backward moving engine and tender of the defendant railroad company at a street crossing in Masonville in the suburbs of Baltimore. A verdict for the defendant was directed at the close of the plaintiff's case on the ground of contributory negligence. An exception to that ruling, and two others to the exclusion of certain evidence, raise the questions to be decided on this appeal.

Pachmayr had been an employee of the defendant for 18 years. At the time of the accident he was a conductor and served also as a yardmaster. During hours when he was not so employed he supplemented his earnings by operating a truck for light hauling. He was engaged in that work when he was killed. The truck was being driven southwardly on Mason street, and the engine and tender were moving westwardly on the single track extending through Masonville. A short distance to the east of the Mason street crossing were spur tracks and a coal pile. The engine had been shifting cars at that point just before it started towards the place of the collision. The shifting movements were visible over an open area from a parallel thoroughfare, known as Mavin street, a block distant to the north, along which Pachmayr drove his truck before turning south on Mason street. There were houses on the east side of that street, north of the railroad; the southernmost being 10 or 12 feet from the track. The only eyewitness to the accident observed it from his position on Mason street in front of the fifth house north of Mavin street, and he testified that about noon he saw Pachmayr as he drove his truck on Mason street from the Mavin street intersection towards the railway crossing; that as he approached the track he appeared to "slow up"; that then "all of a sudden" the engine, going west "in a backward motion" with "the tender first," hit the truck, carried it 20 or 25 feet, and turned it over on its side; that the witness ran to the spot and helped to lift the truck from Pachmayr, who seemed to be dead; that there was no one on the tender or stationed at the crossing, and the witness heard no bell or whistle sounded as the engine approached the scene of the accident. According to other testimony the engine was moving "right fast" towards the crossing, just before the collision, and there was no one on the tender except the engineer, who was on the south side of the engine "and facing" in that direction.

The trial court admitted, subject to exception, but later excluded on motion, the following printed instructions of the defendant to its trainmen:

"In the movement of engines with or without cars while switching over highway grade crossings within yard limits, also commercial and station sidings, mine, industrial, or passing sidings; unless there is a crossing watchman at his post or the gates are down, a member of the crew will protect highway traffic at crossings by preceding each movement over the crossing and see that all highway traffic has been stopped before signaling the engineman to proceed.

The same protection will be given whenever a light engine is making a movement either forward or backward over highway crossings at grade, except when running from one station to another as a straightaway movement, also whenever a train or engine takes a siding and obscures the view from the highway of an approaching train."

The Masonville crossing was within "yard limits."

Another rule of the defendant, proffered by the plaintiffs but not admitted, was as follows: "A train will not back over a public crossing or highway, unless there is a trainman on the rear car or one on the ground ahead of such car to see that the crossing is clear."

Several witnesses who for extended periods had served as conductors or brakemen on the portion of the defendant's railroad which passes through Masonville, and which is used only for freight traffic, testified as to the practice of trainmen in regard to the protection of travel on the street crossing over the railroad in that village. The first of those witnesses, a former conductor, when asked what was the customary practice in that respect, said, "I either flagged myself or had one of the men to do it." He said this was done for safety and in accordance with the company's rules. The first of the rules heretofore referred to was cited by the witness as containing such a requirement. The cross-examination of this witness, and of the others testifying on the same subject, proceeded upon the theory that the engine and tender which collided with Pachmayr's truck were not engaged in switching but were on a straightaway movement from one station to another and therefore the provision of the rule for the protection of highway traffic at crossings was not applicable. There is no proof in the record as to the purpose for which the engine, "running light," was moving westwardly when the collision occurred. About 400 feet to the west of the crossing was a "hump" where trains were "broken up" on a system of switches connecting with the main track. The coal pile switch, where the engine had just been shifting cars, was only "half a block," or from "sixty to seventy-five feet," to the east of the crossing, as two of the witnesses respectively estimated. The engine may have been on its way to the hump for the purpose of transferring cars to the coal pile. There is nothing in the testimony to indicate that the passage of an engine and tender from one of those switching points to the other, covering a distance of approximately 500 feet, would be regarded by trainmen as a station to station movement within the meaning of the rule by which they are governed. But the witness stated that there was no variation in his practice of flagging the crossing, regardless of the purpose or destination of the train or engine movement, and he testified that he had often seen other train crews observe that precaution.

Another witness, a former brakeman, said that he always flagged the crossing when switching over it, but not when bringing up a train of cars. A railroad man, not employed by the defendant, but living in Masonville at the time of Pachmayr's death and familiar with the operation of engines and trains over the Mason street crossing, testified that they were generally flagged when going east, but when a train was moving westwardly towards the crossing the engineer would blow for a signal to be given from the hump that the way was clear, and that the signalman at that point could see the crossing and observe whether traffic on the highway would be endangered by the passage of the train.

A resident of Masonville...