State v. Norfolk & W. Ry. Co.

• Decision Date: 11 January 1927
• Docket Number: 46.
• Citation: 135 A. 827,151 Md. 679
• Parties: STATE FOR USE OF CHAIRS ET AL. v. NORFOLK & W. RY. CO.
• Court: Maryland Court of Appeals

135 A. 827

151 Md. 679

STATE FOR USE OF CHAIRS ET AL. v. NORFOLK & W. RY. CO.

No. 46.

Court of Appeals of Maryland

January 11, 1927

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

"To be officially reported."

Action by the State, for the use of Fannie R. Chairs, the widow of Frank H. Chairs, deceased, and others, against the Norfolk & Western Railway Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded for new trial.

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

Bernard J. Flynn and Alexander Armstrong, both of Baltimore, for appellants.

William P. Lane, Jr., and Samuel B. Loose, both of Hagerstown, for appellee.

PARKE J.

Isaac Rittinger was the owner of a five-passenger Studebaker automobile, and James G. Spahn, a friend, on the afternoon of December 24, 1923, drove the owner and his wife to Hagerstown, where they went to spend Christmas with the owner's daughter, the wife of Frank H. Chairs. It was planned that, after spending Christmas day in Hagerstown Spahn would go alone with the automobile to Frederick to visit, and, on his return, take the owner and his wife back to their home in Baltimore. The party arrived in Hagerstown went to the home of Frank H. Chairs, and Spahn remained there until about 10 o'clock at night, when Spahn, at the request of Chairs, drove the latter and himself to a store to make some purchases, which had been overlooked by Mrs. Chairs. On their way back, Chairs suggested to Spahn that they drive to Williamsport for a ride. They accordingly proceeded over the railway crossing of the appellee at Virginia avenue in Hagerstown, and, after staying a few minutes in Williamsport, the two started on their return. Spahn continued to drive, and, being unfamiliar with the route, requested Chairs, who sat on the right front seat, to direct him and to tell him when they approached the railway crossings. The first crossing which they met was that of the Cumberland Valley Railway, and Chairs warned the driver before it was reached. Appellee's crossing came next, and it was there that a collision occurred between the automobile and the end of a string of thirty-two freight cars, which were being slowly pushed out upon the crossing.

The appellee's railway crossing was at grade, and consisted of the single main line track and a siding to its south. The tracks were laid diagonally across the highway, which was 55 feet wide, including the sidewalks, and its macadam surface for public travel was about 39 feet wide. Both tracks extend from the west boundary line of the crossing in a straight line for about 300 feet, and then curve slightly to the left. As you approach the railway crossing from Williamsport, which is south of the crossing, the course of the highway is a direct line for about 600 feet before reaching the crossing. The view to the left or west of the highway as you near the crossing is unobstructed, except for a two-story brick dwelling and a few small trees, which are about 75 feet south of the crossing, and on the west side of the highway. The testimony is that on the crossing the tracks are visible in daylight for about 1,000 feet; and that for a distance of 100 feet measured south from the crossing along the highway there is an unbroken view of the tracks to the west for from 900 to 1,000 feet; and that, at a distance of 150 feet, the view of the tracks in the same direction is from 1,200 to 1,300 feet, but that, at a distance of 200 feet from the crossing, a similar view is afforded for 250 feet. Hence, with an adequate unobstructed view of the tracks to the west from this last-named point, there was no occasion to stop as well as to look and listen before attempting to pass over the crossing.

On the west of the highway, and a short distance south of the tracks, there was the usual railway danger signal post, but the crossing was without street or other light; and the railway company relied upon the signals given by an approaching train and by the crossing watchman to warn travelers by day and at night. The watchman was sheltered by a watchman's box built near the tracks, and he was equipped at night with a red lantern, which was so made that a red light could be seen from the front and back faces of the lantern, but not from its two purposely darkened sides. The effect of this was to make the red light visible in but two and opposite directions, and the reason for the use of this type of lantern was to assure that the signal would not be observed by the trainmen when it was being used to warn the travelers on the highway.

The length of the draft of the freight cars which came in collision with the automobile was about 1,200 feet, and, as the pushing locomotive was on the curve in a cut, the engineer could not, at this distance, see the end of the draft, or directly receive a signal from his brakeman at the other end, but regulated the movement of his train by signals relayed through brakemen at both ends, and in the middle, of the draft. The nearer end of the draft was estimated to be from 150 to 200 feet west of the crossing, and the movement of these freight cars was a yard or shifting operation, which began by the engineman blowing his whistle, when he started to push the draft over the crossing, so as to let the crew and the crossing watchman know the beginning of the propulsion of the draft over the highway crossing. According to the testimony on the part of the appellee, as soon as the engineman gave his whistle, the watchman took his place at the middle of the street crossing, between the main track and the siding track, and swung his lantern to give warning to the travelers on the highway. While the watchman was so engaged, the automobile occupied by Spahn and Chairs approached the crossing at a rapid speed without stopping and the draft, as soon as it passed between the watchman and the automobile, prevented either the watchman seeing the automobile or its occupants observing the watchman and his signal. The driver, perceiving in his path, and too late to stop, the freight car, which was slowly moving over the crossing at a rate variously given as 4, 5 and 6 miles an hour, turned, in his attempt to escape, the automobile sharply to the right, and drove off the metaled highway, but not soon enough to avoid being struck by the first freight car, which collided with the automobile, and dragged it, until, in response to a signal from the front brakeman, which was relayed through the intermediate brakeman to the engineer, the draft was brought to a stop after it had traveled almost four freight car lengths east of the crossing. The driver was thrown from the automobile, and was found, injured, lying on the south of the switch, and about 70 feet east of the crossing. The dead body of Chairs was among the wreckage of the automobile which had been swept along and crumpled under the first freight car. The other evidence of the appellee tended to support its theory that the watchman was on the crossing in time, and, with the red light of his lantern displayed to the travelers on the highway, did signal long enough before the car...