#### BALTIMORE AND OHIO RAILROAD COMPANY *vs.*WILLIS T. WINDSOR.

*Railway Grossing Accident*— Automatic *Signal Silent*— Con*tributory Negligence.*

The degree of care required of one approaching a crossing, when an automatic bell of which he has knowledge is silent, is only that which an ordinarily prudent man would use under such circumstances, and not the extreme care that would be required if there were no device there to indicate safety, and whether proper care was exercised under such circumstances is ordinarily a question for the jury. pp. 435-440

A contention that plaintiff was guilty of negligence as a matter of law must be presented by a prayer asking for a verdict on that ground, in order that it may be considered on appeal, p. 435

*Decided August 9th, 1924.*

Appeal from the Circuit Court foT Montgomery County (pRTKR and WORTHINGTON, JL).

*430Action by Willis T. Windsor against tbe Baltimore and Ohio Railroad Oompany. From a judgment for plaintiff, defendant appeals.

Affirmed.

Tbe cause was argued before PattisoN, UeNER, AdkiNS, Offutt, Digkks, and BoNd, JJ.

*James A. 0. Bond*and *James E. Boylan•, Jr.,*for tbe appellant.

*Albert M. Bowie*and *Thomas L. Dawson,*for tbe appellee.

AdkiNS, L,

delivered tbe opinion of tbe Cburt.

Tbis suit grows out of a collision at Buck Lodge crossing of tbe Baltimore and Ohio Railway in Montgomery County between a fast express train of the company and a Ford automobile truck of tbe plaintiff. Tbe railroad' runs east and west and tbe county road north and south, tbe approach to tbe crossing from tbe south being up. grade. On tbe east side of tbe county road and south of tbe railroad is the station. At this point trains going both east and west run on a single track. .South of tbe track is a switch track or siding. There is a curve in tbe railroad extending from some distance west of tbe crossing to 1,200 or 1,400 feet east thereof, and on the east side there is a cut, tbe deepest part of which is about eighteen feet. Tbe station obstructs the view of tbe track east of the crossing to one approaching from tbe south and tbe south bank of tbe cut conceals trains approaching from tbe east, until within 'a short distance of tbe crossing. There is some conflict in the testimony as to just bow far and from what points trains approaching from tbe east can be seen by one travelling on the county road from tbe south, but tbe photographs and accurate measurements establish satisfactorily that tbe line of vision .along tbe front of the station, which is about ten feet, or perhaps1 a little less, south of the south rail of tbe switch, extends eastwardly along the track 'for 398 feet; and' at a point about one foot north of tbe north, rail of tbe switch' there is an unobstructed view *431eastwardly for 445 feet. The main trank and the switch, track are each 4 feet 8% inches wide and the1 distance between them is 8 feet 3% inches. The projection of the engine over the rail was '2 feet 7% inches. The accident occurred at about 5.30' o’clock on Sunday afternoon, June 12th, 1921. The plaintiff with three companions in the truck approached the crossing from the south. Cooley, one of the party, “was sitting1 on, the right hand side on the part of the truck body. My feet were on the running board.” He was facing towards the east. His position was practically in a line with, just slightly to the rear of, the plaintiff and another one of the party who occupied the seat of the ear. The fourth member of the party Was sitting" in ,a chair in the trade back of plaintiff. The plaintiff was driving.

Ooolcy testified that they “pulled up to the crossing. He (the plaintiff) throwed his car out of gear and listened for a bell and looked for the train and didn’t see no train. He started across and just about the time the front part of the truck got on the switch, about that time I got the glimpse of the train and I jumped off. They pulled across about the center of the main track and the train struck the machine in the center”; that plaintiff' looked both ways; that witness said down the road before they reached the crossing ‘watch the crossing’; that about four feet from the crossing they had the oar in neutral, and started across in low gear; that witness jumped about the first rail on the switch. “Of course the machine Willis was driving the front part was up on the switch.”

Q. Did yon give any warning when you jumped ? A. No, sir, I didn’t have time. Q. Didn’t have time to say anything to them ?' Did yon hear the train coming ? A. No, sir, jnst when'I ’saw it. Q. Did you listen for it? A. Yes, sir. Q. Will you state whether or not you heard the train'blow? A/ No, sir,.-! didn’t. Q. Were you listening for the train'to-blew'?;' A.; Yes,T sir.v .Qb And looking too? A. We couldn’t see: until'we got up on the switch.".. I couldn’t see until I got from-around the'view of ihé .station:' Q. ;WHát, if anything;did • you Lear - as you r approached 'thé ■ crossing *V*A.: I never *432beard nothing. Q. Do yon know where that electric alarm bell is? A. Yes, sir. Q. Will you state whether or not you heard that bell ring?' A. No, sir, I didn’t hear it ring.

The plaintiff, Willis T. Windsor, in answer to a request by his counsel to tell just what happened said:

“I came up past Mr. Wade’s store. I was running about ten miles an hour. I slowed my machine down as I approached the crossing and stopped — stopped it about a foot to the side of the track and looked and listened and I shifted my machine in low gear and started to1 cross. As I got on the main track I saw the machine coming in the opposite direction. About that time I heard a roaring noise. I kind of glanced around and before I could see what it was it struck us. That is the last I remember.” The machine referred to was an automobile approaching the crossing from the north, which, according to the testimony of other witnesses, stopped about thirty feet from the crossing. Plaintiff further testified that his front wheels were about a foot from the south rail of the switch when he stopped; that he looked and listened, but neither saw nor heard anything; that he looked toward the east before starting; that coming up the hill from Wade’s store, which appears from other testimony was 105 feet south from the center of the main track, he was travel-ling about eight or ten miles an hour; that when he stopped on the switch his engine continued to run; that his oar made no more noise than .any other’ machine; that he shifted to low gear when he started to cross the tracks; that he knew there was an alarm bell there and had heard it before, but it was not ringing when he proceeded to cross the track; that he had crossed the track two or three times before the day of the accident; that he did not hear any one shouting a warning; did not see Dooley when he jumped; that the oar was in good condition and he was an experienced driver; there were no curtains on the sides of the car to obstruct his view; that he looked to the right and to the left and Nicholson who sat on his right also looked; that he could not see clear down to the cut; could only see about 50 feet toward the east; that after he started off he “saw a machine coming *433in tbe opposite direction and kind of watcihed Mm”; be continued to look ahead of him then; didn’t stop! again to look or listen; was struck in about two seconds.

As we ha,ve said above, we are satisfied from the position he places himself in, plaintiff could have seen, if he had looked towards the east, at least 398 feet; and if *a*train was not within that distance when he started to go over the tracks, it must have been at least six seconds before it reached the crossing, running forty-five miles an hour. The other two members of plaintiff’s party were killed in the accident.

Two of the occupants of the car at. the north of the orossi-ing testified: One of them, said ho did not see the train until it ran into the truck; the other saw the smoke coming out of the cut; both of them heard the train before the. accident, one of them even before it got into the cut; both of them sa,y the automatic alarm, bell did not ring. Neither of them stated whether or not he heard the whistle or bell of the engine.

Several of the train crew testified that the whistle blew and the bell rang at the usual places for that crossing. Two other witnesses also swore to this. The latter also, stated they heard the .automatic bell ringing.

Defendant proved that the train was running at about forty-five miles an hour. The fireman on the engine testified that he saw: the truck approaching the crossing running at high speed and that it did not stop' before the collision.

There was evidence on the part of the plaintiff that .an automatic electric bell had been maintained at this crossing by the defendant for eighteen or twenty years; that prior to that time a watchman was stationed at the crossing. Several witnesses testified that about two hours after the accident, they were at this point and observed a train passing going west and they noticed that the electric alarm hell did not ring.

The ticket .agent, at Buck Lodge testified that, this electric hell was inspected on Saturday morning, the day before the accident, between 8 and 9 o’clock by the regular inspector *434o-f the company, and that it was in condition after that and rang all right. Witness left the station at 3.30 o’clock Saturday afternoon, and did not return until after the accident; that the station is closed on Sundays. “Q." When you left at 3.30 was it in condition ? A. I couldn’t say right at that time. There wasn’t a train coming at that time that I can remember, but it was in condition as far as I know. It w.as ringing the last train that went by.”

Witness further testified that he was the only person connected with the company that would be in charge of that station from Saturday evening to> Monday morning; that he went back to the station .after the accident and was there between half past five and six o’clock. One train went by in that time going east and the bell rang; that when he returned Monday morning the bell was working all right for trains going both east and west “as far as I remember”; that when the bell got out of order he would notify the company at once to have it repaired; it was his duty to do so; and he always did it; didn’t remember how many times he had reported the bell out of order prior to June, 1921; didn’t remember whether it was out of order at all; might have reported it at other times than the day before the accident, it had been some time ago “and I don’t remember how many times; whether oncei or twicef; that he made reports to Mr. Sanbar, the signal man; the report just before the accident was on Friday evening and Mr. Sanbar got there on Saturday morning and repaired the bell that day, and it rang all right; didn’t know what was the matter1 with it.

There is no testimony as to1 any time when'the bell was out of order except 'at the time of the accident, and 'a few hours afterwards, and on the Friday before; or that -it was ever permitted to' remain out of order. The declaration filed in the'case contains'three counts charging'negligence respectively, as follows:

: 1. 'In-the failure-to give notice of the:approach of the train by.engine signals:

. 2.. .In the failure'of the-automatic signal. .beU-oto ring because of its broken condition and being out of repair.

*4353. In the failure of the defendant to maintain the automatic signal in proper condition in pursuance of the provisions of article 23, section 303 of the Code of Public General Laws of Maryland.

A demurrer to the declaration and to each count thereof was overruled, issue was joined on the general issue plea.

This appeal is from a judgment on a verdict in favor of plaintiff.

There are two bills of exception, one to a ruling on evidence, and the other to the ruling on the prayers.

No point is made as to the correctness of the ruling of the trial court on the demurrer, or on the question of evidence involved in the first bill of exception; and we are asked to consider only the second bill of exception.

The plaintiff’s two prayers which were granted were the burden of proof prayer as to contributory negligence^ and the usual measure of damages prayer, both of which were unobjectionable if there was any case to go to the jury.

The third count of the *narr.*was properly eliminated by the granting of defendant’s fourth prayer.

Its first prayer asked for a directed verdict for want of legally sufficient evidence under the pleadings to' sustain a verdict for plaintiff. Its second and third prayers, asked for a directed verdict as to the first and second counts respectively. Its fifth, and sixth were as follows: •

*“Defendant's Fifth Prayer.*— The court instructs the jury that even though the jury should find from all of the evidence that the crossing bell at Buck Lodge did not ring and that the servants in charge of the train which struck the truck did not give any signal by bell or whistle of its approach to said train; yet the verdict of the jury must be for the defendant if the jury shall further find from all of the evidence that the plaintiff stopped his truck with truck’s front wheels one foot from the south rail of the switch over the crossing, and could have seen, if he had looked, before he reached the main railroad track of the defendant, the approaching train in *436time to bay© stopped bis truck and avoided the accident. (Rejected by a divided court.)”

*“Defendant's Sixth Prayer.*— That if the jury find from the evidence that the crossing bell did not ring at the Buck Lodge crossing to warn plaintiff of the approach of the train which struck the automobile in which the plaintiff was trav-elling at the time, the court instructs the jury that there is no legally sufficient evidence in this case from which the jury may find that the failure of the bell to ring was due to the negligence of the defendant corporation; and the verdict of the jury must be for the defendant on the issues joined in the second and third counts of the plaintiff’s declaration. (Rejected by a divided court.)”

All of defendant’s prayers were refused except the fourth. In defendant’s brief it is conceded that there was some evidence that the usual engine signals were not given. This disposes of defendant’s first and second prayers. They were properly infused. ■

The contentions of defendant here are: 1. That there was no evidence of negligence on the part of defendant in connection with the alleged failure of the automatic signal. 2. That the plaintiff was guilty.of contributory negligence. 3. In any event the jury should have been instructed that it was the duty of plaintiff to continue to look and listen.

The first point is raised by defendant’s third and sixth prayers. The ruling of the trial court refusing these prayers is sustained by a divided court.

The second contention here, that plaintiff was guilty of contributory negligence as a matter of law, was not presented to the trial court by a prayer asking for a directed verdict on that ground.

It remains to consider defendant’s third point. This is presented by defendant’s fifth prayer. That prayer sought to have the jury instructed,, in effect, that even if they found plaintiff stopped his truck with its front wheel one foot from the south fail of the switch, still their verdict must be for the defendant, if the jury should further find that at some point *437nearer the main track, plaintiff, if he had looked, could have seen the approaching train in time to- have stopped his truck and avoided the accident. If this prayer had been granted the j uiy must have found for the defendant if it regarded the undisputed evidence in the ease and the court’s instructions, because there can be no doubt from the whole evidence- that if the plaintiff had looked towards the east after he drove on the switch he could have seen the train in time to have avoided the accident.

And so the question is directly presented, must the rule, which has been -so often announced in cases where a silent crossing bell was not involved, that it is the duty of one at a railroad crossing to continue to look and listen until he has passed the point of danger, and that if he fails to- do so he is guilty of contributory negligence as a matter of law, be strictly applied in *aM*cases, even where the failure of an automatic crossing hell to ring may have induced the trav-eller to exercise something less than the extreme care required in ordinary cases ?

In *L. B. A.*1916, at page 788, it is said: “It is difficult lo deduce from the eases any definite rule as to the extent to which a traveler on a highway may rely upon automatic safety devices placed at railroad crossings for his protection. The cases seem to agree that the presence of such devices at a crossing may properly he regarded as having some effect upon the care required of a highway traveler, but some of the cases, Avhile apparently recognizing this principle, require such additional precautions upon the part of the traveler when considering a concrete example, that there seems to he no practical difference between the care required when an automatic device is present and that required when no such device is maintained.”

“About all that may be said is that a traveler approaching a crossing at which he knows an automatic signal is maintained, while entitled to place some reliance upon the indication of safety which silence of the signal implies, is never-*438tireless bound to use snob oare in addition as an ordinarily prudent man would use under suob circumstances.”

See also *Am. and Eng. Ann. Cas.,*1918 D, at page 389; note to *Jacobs*v. *Atchison etc. Ry. Co.,*1918 D; 33 *Cyc.*1028.

An examination of tbe cases cited in tbe above mentioned notes will verify tbe accuracy of tbe conclusion of tbe authors. While there is much conflict in tbe authorities, tbe last clause quoted seems to be supported by tbe best considered cases; and we take it to mean that tbe degree of care, required of one approaching a crossing, when an automatic bell of which be has knowledge is silent, is only that which an ordinarily prudent man would use under *such circumstances,*and not tbe extreme care that would be required if there were no device there to indicate safety; and that whether proper care has been exercised under *such circumstances*is ordinarily a jury question.

The facts in the case of *Hicks*v. *N. Y., N. H. & H. R. Co.,*164 Mass. 424, are strikingly like the facts of the present ease, but not as favorable to the plaintiff. There plaintiff stopped 150 feet from the crossing and then went across without continuing to look. It was held that the fact that if he had continued to look he could have seen the train before he reached the track was not sufficient to take the case from- the jury, the crossing bell having failed to ring. The court said: “We think the case was properly left to the jury to determine whether he exercised such care as an ordinarily prudent person is accustomed to exercise under like circumstances.”

In the present case plaintiff, according to his testimony, stopped *right at the crossing*and, carefully looked and listened for signals, especially the automatic bell; and, according to defendant’s own calculation, the time required for the train to- run from .the place where it was invisible to the crossing was only about six seconds.

We are not unmindful of the fact that prayers similar to defendant’s fifth prayer were commented on by this Court *439without disapproval in *N. C. Ry. Co.*v. Gilmore, 100 Md. 404; and *McAdoo*v. *State,*136 Md. 452. These were cases of open gates. But in these eases the prayers were *granted*prayers and the defendants were appellants. It was not necessary, therefore, to discuss these prayers, and they were referred to mainly with the view of emphasizing the fact that the defendants had gotten at least as much as they were entitled to. Those prayers are not consistent with what we regard as the true meaning of the decision in the *Stumpf*case, 97 Md. 78. It is true, in the latter case it was a question of failure to *stop,*and not of failure to *looh*and *listen.*But it is impossible -to read that ease through, and consider carefully the cases therein cited and quoted from with approval, without realizing that its reasoning is in harmony with the conclusion we have reached, that under the facts of the present case the question of contributory negligence could not properly have been determined as a matter of law.

In *Beasley’s*case, 117 Md. 270, this Court held that the existence of an automatic bell at a crossing did not affect the situation as to the driver in that case, because he knew it was out of order and could not be relied on. But there is not the slightest intimation that it would have been so held if the driver had not known this.

It is urged by. appellant that to refuse to pass upon this question as a matter of law would be equivalent to holding that in *every suit*growing out of an accident at a crossing, where there is a bell and in which there is any evidence of a failure of the bell to ring, the question of contributory negligence must be submitted to the jury.

But we are dealing only with the facts and circumstances of *this*case. It might well be that in other circumstances it would be proper and necessary for the court to hold the plaintiff guilty of contributory negligence as a matter of law, notwithstanding the existence of the element of' a silent bell. To hold, however, that in *no*case should this element be permitted to have any weight in determining whether the question of contributory negligence should .be submitted, to the *440jury would be not only against the weight of authority but against reason, in view of the well established rule that in considering the question of contributory negligence the conduct of the plaintiff must be taken in connection with all the surrounding circumstances. We think this prayer was properly refused.

This, of course, does not indicate our approval of the verdict; or that we would have decided as the jury did. It means, only that, in our opinion, it was a. jury question.

In the opinion filed 'after the first argument of this case we held that the trial court erred in refusing defendant’s fifth prayer. A reargument was granted mainly because, on further consideration, there was serious question in our minds as to the correctness of that ruling. The order then passed will be rescinded.

*Order heretofore passed rescinded. Judgment affirmed, with costs to appellee.*

Offutt, L, dissents.