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March 24, 1954


The opinion of the court was delivered by: KEECH

These cases arise from a collision between a truck and a freight train of the Pennsylvania Railroad at a grade crossing at New Midway, Maryland. Plaintiff Albaugh, who was driving the truck, sues for personal injuries. Plaintiff Wetzel, the owner of the truck, sues for destruction of the truck and loss of the cargo.

The cases are before the court on the defendant's motion for a directed verdict at the close of the plaintiffs' evidence. Three questions have been argued: (1) whether the evidence viewed in the most favorable light, plus all the reasonable inferences therefrom, is sufficient to show negligence on the part of the defendant railroad; (2) whether from plaintiffs' evidence it is apparent that the plaintiff Albaugh was contributorily negligent as a matter of law; and (3) whether there are facts in evidence which might make applicable the doctrine of last clear chance.

 Since the collision occurred in Maryland, all substantive questions must be determined in accordance with Maryland law.

  At this stage of the case the evidence presents two possible bases on which the jury might find the defendant guilty of negligence, first, speed unreasonable under all the circumstances surrounding this crossing and the occasional operation of the train over it and, second, failure to the train to give any warning signal. While the evidence of negligence is slight, the question whether the train should have operated more slowly in view of the nature of this crossing, which had no warning bell, drop gate, or watchman, with a certain volume of traffic on the highway, possible obstruction of the approaches by weeds, buildings, and an overgrown dirt bumper on the railroad right-of-way, and because of the irregular schedule of the train, conceivably presents an issue for determination by the jury. As to the alleged failure of the defendant's engineer to sound the warning bell and horn, we have the negative testimony of the plaintiff Albaugh that he listened for signals but heard none, opposed by the testimony of the engineer that he started sounding his bell and horn at the whistle post before he got to the crossing and continued to sound the horn until the crash. The testimony of Mr. Underwood, plaintiff's principal witness, that he did not hear any warning signals when he was inside a store, 35 feet from the crossing, and had no reason to be listening for signals, is entitled to little or no weight, leaving the contradictory statements of plaintiff Albaugh and defendant's engineer without corroboration. This fact distinguishes the instant case from those in which the Maryland courts have held that negative testimony of plaintiff that he did not hear signals is insufficient to take to the jury the issue of failure to sound them, in the face of testimony by disinterested witnesses that the signals were sounded. *fn1" Hence, on the present state of the evidence, if defendant's negligence were the sole issue, I would find the defendant should be required to go forward with its case.

 Assuming, therefore, for the purpose of this motion that the defendant was negligent, I find on the testimony of plaintiff Albaugh and his witnesses that he was guilty of contributory negligence as a matter of law.

 Mr. Albaugh testified that he knew of the existence of this railroad crossing, knew that the train arrived at New Midway at no regular time, and knew that the afternoon train was bound from Frederick to York; that he had gone to the New Midway school, had traversed the crossing many times in his own car, and had driven the Reo truck involved in the collision two or three or four times across the tracks; that he knew of the warning sign at the crossing; that he was acquainted with the fact that there were obstructions on or near the right of way which cut off from the view of a person driving along the highway trains approaching on the side from which the train in question would come on its afternoon trip from Frederick. The day was clear, dry, and sunny. Plaintiff Albaugh was proceeding in a southerly direction on a slight upgrade toward the track. He had been traveling at 25 miles per hour, but slowed down to 20 miles. He did not lessen his speed further or come to a stop. The photographs introduced as Plaintiffs' Exhibits 2 through 6 reflect possible obstructions, but indicate that from a point on Route 71 some distance north of the track area Mr. Albaugh could have seen an eastbound train approaching when it was a substantial distance west of the crossing. Mr. Underwood testified that one in a car or standing on the roadway could see the engine from the highway. The plaintiff Albaugh testified, however, that he looked but never saw the train, approaching at 25 miles an hour, and that he continued onto the track at 20 miles an hour. Since Mr. Albaugh must have seen the train approaching had he looked, his testimony that he looked is incredible. *fn2"

 The Maryland rule is clear that failure to look is negligence per se; *fn3" and that where the view is obstructed, one seeking to cross the tracks is negligent per se if he does not slow down or stop in order to assure himself that the way is clear. *fn4" The Maryland Court of Appeals has stated that the rule requiring the motorist to look 'is applicable with even greater force in outlying sections * * *.' *fn5"

 We come then to the question whether the plaintiffs have established any facts warranting an application of the last clear chance doctrine. As in the case of the defense of contributory negligence, last clear chance must be viewed in accordance with the law of Maryland. *fn6"

 Plaintiffs pitch their argument that the doctrine applies on two premises: (1) that the jury might infer from testimony in the engineer' deposition that the fireman cried out before the train crossed the dirt road 240 feet from the crossing, and if the emergency brake had been applied at that point or promptly thereafter the collision would not have occurred; and (2) that the jury might find, from the engineer's testimony that the emergency brake would act 'at once' but the engine was still going at 25 miles an hour at the time of the impact after application of the emergency brake, that the brake was defective, hence the last act of negligence would be defendant's.

 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. *fn8" 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 ...

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