Standing alone, the answer is unintelligible and suggests a typographical error. The answers to prior and subsequent questions show that the engineer was testifying unequivocally that he heard the fireman's cry and threw on the brakes about two engine lengths (a length being stipulated as 46 feet) or 80 or 90 feet from Route 71, when he was practically at the highway, whereas he estimated the dirt road to be about 75 yards from the highway. There not only is no intelligible testimony that the fireman called out before the engine crossed the private road, but there are many distinct and positive statements that the engine was not more than 90 feet from the highway.
Simple arithmetic based on Mr. Albaugh's own statements demonstrates that he could not have been observed in a perilous position when the engine crossed the private road. An engine travelling at 25 miles an hour would cover 36.7 feet in one second and when 240 feet from the crossing would have been a little over 6.5 seconds away from Route 71. Since a vehicle travelling at 20 miles an hour goes 29.3 feet in a second, the truck would have been at that moment at least 180.45 feet back of the intersection. Had the fireman sighted the truck proceeding at 20 miles an hour 180 feet back of the crossing, he would have had no reason to cry out, for he would have had the right to assume that the truck, being in a position of safety, would yield the right of way to the train.
As the plaintiff Albaugh would not then have been in peril, the fireman could not have observed any need to avoid a collision or oblivion to peril on Mr. Albaugh's part.
On the other hand, if the train were 90 feet away from the crossing when the fireman called out, it would reach Route 71 in roughly 2 and 1/2 seconds. The truck would then have been 73.25 feet from the crossing; and if there was no indication that the driver was going to stop, the fireman would become apprehensive and warn the engineer, whose view to the left was obstructed by the cab of the engine.
There is no evidence as to the number of feet in which an engine of the type here involved can be stopped. The engineer stated that on application of the emergency brake the train begins to show down in a matter of seconds or 'at once', 'just as soon as the air gets back in that distance.' He testified on the stand that the engine stopped after the impact in five car lengths and in his deposition two or three car lengths, a length being 40 feet.
Taking judicial notice of the fact that a human being has a certain reaction time (placed at 3/4 of a second by plaintiffs' counsel) before he can operate the instrument which sets the brakes in motion and taking into consideration the fact that the mechanism of a train air brake, according to plaintiffs' witness, does not function instantaneously once it is put into operation and the further fact that during the interval necessary for reaction time plus functioning of the brake mechanism, the train was proceeding at 25 miles an hour, or 36.7 feet a second, the court holds there is no proof of a time when the engineer could have stopped the train or even slowed it down appreciably. Since there was no showing that at the time the truck entered the tracks on the grade crossing the railroad train could have been stopped short of the crossing, there is no evidence to support a theory of last clear chance.
As to the argument that it might reasonably be inferred that the train did not slow down because the brakes were defective, assuming arguendo that the brakes did fail, no inference of negligence on the part of the defendant may be drawn from such failure. Last clear chance applies when the defendant could have avoided harm by the use of the means available.
As stated in United States v. Morow, 1950, 87 U.S.App.D.C. 84, 182 F.2d 986, there are cases which hold that antecedent negligence of a certain character, which deprives the defendant of a chance to prevent the accident, places the responsibility on him, but those cases involve the knowing operation of a vehicle with a continuing defect. If it should be inferred that the brakes failed to operate, there is no evidence here that the defect existed prior to the failure, or that the defendant knew or should have known of the defect. The sole evidence as to the prior condition of the brakes and the defendant's knowledge thereof, is the testimony of the engineer, plaintiffs' witness, that he checked the operation of the brakes and found them to be functioning before the train left Frederick, approximately 13 miles away. Any inference that the brakes were improperly checked at Frederick, as suggested by plaintiffs' counsel, would be sheer speculation. Theory and supposition are worthless as a foundation to support a verdict.
'Where it is manifest to the court upon the plaintiff's own showing and the uncontradicted evidence in the case that there is no rational ground upon which a verdict can be based for the plaintiff, it becomes the duty of the court to direct a verdict for the defendant."
Plaintiffs claim that the defendant, by going beyond the scope of the plaintiffs' examination of the engineer, has put in evidence, and hence has waived its right to a directed verdict on plaintiffs' case. For the purpose of this motion, it is not necessary to determine how the defendant's right to a directed verdict would be affected by the improper admission of new material on cross-examination of plaintiffs' witness, since the questions put by defendant were proper cross-examination to bring out matters tending to qualify, modify, or explain the engineer's testimony on direct examination
concerning the circumstances of the accident.
For the foregoing reasons, I am constrained to grant the defendant's motion for a directed verdict.