Baltimore & Ohio Railroad v. Harris

88 A. 282, 121 Md. 254, 1913 Md. LEXIS 71

• Court: Court of Appeals of Maryland
• Decided: June 25, 1913
• Status: Published

Opinion

Thomas, J.,

delivered the opinion of the Court.

The declaration in this ease charges that the defendant maintained a number of tracks across Williams street, one of the public streets of Cumberland, Maryland, and that on or about the 20th day of October, 1911, the equitable plain tiff “was lawfully traveling along said Williams street, and using due care and caution, and approached the crossing of the defendant over said” street, which crossing “at that time, was partially occupied by an engine of the defendant company, in charge of an engineer and fireman of the defendant, who were then and there acting as its servants and agents; that the plaintiff stopped at said crossing and waited for a long time” for the “defendant, its servants and agents, to remove said engine off said crossing so that she might pursue her way over said crossing to her work at the Rooter’s Dye Works, in Cumberland; that after she had waited for more than five minutes for the said engine to be taken off of the said crossing, the engineer and fireman of the defendant, in charge of said engine, called to her, and told her to pass around in front of said engine, and cross on over the crossing, and that thereupon the plaintiff, using every care and caution on her part, started across the said crossing, upon the solicitation and invitation of the agents and servants of the defendant so in charge of said engine, — and had proceeded so far as to be upon the track upon which said engine was then and there standing, and directly in front of said engine, when, without any notice or warning of any kind” from the agents of the defendant in charge of the engine, or any other person, “the whistle of said engine was suddenly blown by the said engineer or fireman in charge of the same, in an entirely unreasonable manner, causing a loud and shrill sound, while the plaintiff was directly in front of said engine, and at the same time the said agents and servants of the defendant — in charge of said engine, and knowing the position of the plaintiff directly in front of said engine, unlawfully, negligently and carelessly, without any warning whatever to the plaintiff, opened the cylinder cocks on said engine, and then and there permitted an unusual and unnecessary quantity of steam to escape from the said engine, and an unusual and unnecessary noise to be made by the escape of said steam, and that by reason of the said careless and negligent, unusual and unnecessary whistling,' noise and escape of steam,” caused by the agents of the defendant, “in charge of said engine and acting in the line of their employment, while the plaintiff was directly in front of said engine, the plaintiff became shocked with fear, so that she became and was unconscious, and lost control over her actions, which caused her to fall down.upon the railroad track in front of said engine, and that as she fell, her mouth struck one of the rails of the track upon which said engine was standing, and her front teeth were broken and injured, and her jawbone was broken and splintered, etc.” It further charges that the injuries complained of were directly caused by the negligence of the servánts of the defendant “in blowing the whistle of said engine on said crossing at said time and place, in an unlawful, unusual and unnecessary manner, and in negligently and carelessly causing an unusual and unnecessary amount of steam and noise to escape from said engine,” while she, without any notice to the plaintiff and to the knowledge of the said servants of the defendant, was passing in front of said engine; that “the said escape of steam and the said blowing of the whistle were such as were calculated to frighten a woman crossing a railroad track directly in front of the engine, and that these facts were well known” to the servants of the defendant in charge of said train,” and that her said injuries ought to have been foreseen “by said servants, agents of the defendant” as a natural and prohable consequence of the negligence of the defendant — in so negligently and carelessly blowing the whistle of said engine, and allowing steam and noise to escape in an unnecessary and unusual manner as aforesaid.”

At the trial the plaintiff testified that she was twenty years of age, lived with her aunt in Cumberland and was employed as a presser at Footer’s Dye Works; that she went home to dinner on the 20th of October, 1911, and that on her way back to work, she and her companion, Miss Margaret Trieber, went down Williams street; that when they reached the crossing a train was on the crossing, and after waiting there over five minutes, a brakeman, who was on the same side the train she was, and below the crossing, told the engineer, who was in the cab and on the same side of the train, to cut' the train, and that the engineer hollowed back to the brakeman, “If there are only two let them walk around,” and that the brakeman then motioned to them to walk around; that when the brakeman told her that, she thought it perfectly safe, and she and her companion then walked up the track between the engine and some cars standing on the next track the distance of the length of a ear, the cab and engine, and as she was crossing in front of the engine, and was on the track the engine was on, about five or six feet in front of the engine, “the engineer blew an extremely loud whistle and blew steam from the cylinder cocks, and it covered the front of the engine and so scared me that I just thought the engine was going to- run over me and I fell unconscious on the track, my upper jaw striking the track, and I laid there unconscious until Miss Trieber picked me up.” She also stated that the engineer saw them as they passed the cah, and further testified: “I have seen steam coming out of engines and heard whistles blow at this same crossing. I see them every day;” that she had heard engines “blow lots of times” when she was five feet away from them, and that the whistles she had" previously heard were not near so loud as the whistle blown when she passed around the engine at the time of the accident, and which she described as “one loud shrill blast, an .extremely loud whistle, louder than I ever heard before.”

The statement of the plaintiff as to what occurred when she reached the crossing and when they started to cross the track in front of the engine is corroborated by the testimony of Miss Trieber, who further stated: “When the whistle blew and the steam exhausted it frightened her (the plaintiff) and she fell with her face downward, striking her face against the rail towards Rooter’s Dye Works. The engine blew one real loud blast. I had used that crossing nearly a year and have heard engines blow on that crossing quito often, about five times a week, probably oftener. I would be about five or six feet from them when they blew.” When asked to tell the jury “the sound made by the blowing of that particular engine compared with the other blasts” she had heard “as to loudness,” she replied, “Well, it was much stronger than any other; like a toy cornet or horn to that of larger cornets or horns,” and said further, “A large quantity of steam came from around the bottom of the engine; it came from about the cylinders. It made a great noise.” Bernard Griminger, who was near the crossing and saw the plaintiff fall as she was crossing the track in front of the engine, says “then for a minute I couldn’t see either of them because the steam enveloped them the blowing of the whistle caused me to look that way, it blew once, an awful shrill long-blast, there was a great deal of steam.” The plaintiff produced further evidence to show that the natural and probable effect of suddenly subjecting a woman twenty years of age to a loud noise that frightened her would be, to some extent, to impair her nervous system and her control of her muscular movements, and to show the extent of plaintiff’s injuries, and then offered in evidence ordinances of the City of Cumberland making it unlawful to obstruct with a locomotive, engine or car the crossing on Williams street for a longer period than five minutes, and for any owner or person in charge of an engine or locomotive to blow the whistle of such engine or locomotive, or to allow the same to be blown within the City limits except when absolutely required by the rules of the corporation or person owning or running the same, “or to avoid accident, or in any case to blow a full valve whistle.” The defendant proved that Williams street was sixty feet wide, and allowing ten feet on each side for sidewalks, the driveway was forty feet wide; that the space between the two tracks is seven feet, and that the space' between the ends of the cross ties, “where you can walk,” is three feet. Harry W. Critehfield, one of the brakemen on the train,' testified that he was the middle brakeman and was at the crossing; that Smith, the head brakeman, who was on the far side of the crossing, and who at the time of the trial was in a hospital, gave him the signal to cut the train; that he “parted the hose, and not being able to see the engineer he crawled up on the cab, and as he backed down off the cab he nearly backed into two ladies; that he walked back to where the train was to be cut, and gave the engineer the signal to move ahead, and that the engineer answered him by two sounds of the whistle; that the first he saw “of the young ladies was when he backed down off of the engine”; that the crossing was blocked about four minutes, and the cut was made after the engineer sounded the whistle; that “he did not tell the young ladies to go around in front of the engine " * * did not hear the engineer say, ‘If there are only two let them go around,’ * * * and did not motion to them to go around”; that the only time he saw the girls was when he backed down off the engine; that when they passed him they were between two trains on the defendant’s property, and he did not know where they were going. W. M. Eoster, the engineer, testified that when he first saw the plaintiff and her companion he was on the engine and they were down on the right side of the engine, going towards the head of the engine; that the engine, tank and one or two cars were beyond the crossing; that he did not hallow back to the brakeman, “If there are only two girls let them walk around in front of the engine”; that he did not see them in front of the engine, and did not know where they were going when he saw them pass the side of the engine; that the brakeman was stationed at the crossing when he gave him the signal to go ahead, and ¡hat he sounded the whistle twice as an answer to his signal, because it is the rule to give two blasts in answer to a signal ; that after answering the signal he remembered about the two girls being near the engine, and asked the fireman if they were around the engine and out of the way; that he supposed they were going around, but not knowing he wanted to be sure where they were, and finding that they were out of the way he moved the engine ahead and ent the crossing. He further' testified that in going ahead he opened the throttle io admit steam to the cylinders, but there was no expulsion or escape of steam around the cylinders, and that he did not blow a long, shrill, loud blast; that he could not see right in front of the engine, and that after he answered the signal, before going ahead, he asked the fireman if the young ladies were out of the way, and that he replied: “Tes; they are going down here and one of them is bleeding in the mouth; she must be having a hemorrhage or something”; that he did not release the cylinder cocks, which “were operated from a lever inside the cab.” The testimony of the fireman, who was on the opposite side of the cab, supports the statement of the engineer that he blew two short blasts, and he says that he did not hear the engineer say, “If there are only two girls Jet them walk around.”

The defendant demurred to the declaration, and at the conclusion of the testimony offered a prayer to take tho case from the jury. The main contention of,the appellant in support of the demurrer and this prayer is that there can be uo recovery for injuries resulting from fright without physical impact. That question has been so recently and carefully considered in Green v. Shoemaker, 111 Md. 69, that ihere would seem to be no room for further discussion. In that case the question was the right to recover for nervous prostration resulting from fright caused by continued blasting, and Judge Peabce, after reviewing the cases bearing upon the question, quotes, as expressing the correct view, the statement in Denver R. R. Co. v. Roller, 100 Fed. Rep. 738, where the jury was instructed as follows: “If great fright was a reasonable and natural consequence of the circumstances in which the collision aforesaid, with the ensuing ■wreckage, explosion and conflagration, placed the plaintiff, and if she was actually put in fright by those circumstances, and injury to her health was a reasonable and natural consequence of such fright, and was actually and proximably occasioned thereby, the said injury is one for which damages are recoverable.” In the case at bar the injury, according to the averments of the declaration and evidence adduced by the plaintiff, were the result of a fall caused by the shock and fright produced by the sudden blowing of the whistle and escape of steam, and in Greerís case, the learned judge who wrote the opinion said: “If, in the case before us, the plaintiff had received an actual blow, * * * by a fall of herself, caused by the alarm of the concussions, no one would question her right to maintain this action.” It is also urged by the defendant in this connection that at the time of the accident the plaintiff was on the defendant’s right of way and that the alleged invitation of the engineer and brakeman was beyond the scope of their employment and does not bind the defendant. But assuming that the engineer and brakeman' had no authority to direct or authorize the plaintiff to use the defendant’s property under the circumstances, and for the purpose indicated, they were nevertheless in full control of the train, and if they knew, as alleged and shown by the plaintiff’s proof, that she was in a position of peril by reason of their invitation, they were bound to exercise reasonable care to avoid injuring her, and their failure to do so would render the defendant liable for resulting injuries. This doctrine has been so frequently announced and applied in this State that it requires no citation of authority. The engineer was in the cab and in control of the engine, and the cylinder cocks were operated by a lever in the cab. Neither the rules of the defendant nor the conduct of its business required an unusually loud whistle to be blown at the time mentioned, and the ordinance prohibited “in any case” the blowing of “a' full valve whistle” within the city limits. If, as alleged and testified to by the plaintiff’s witnesses, the train in question was blocking the crossing, and the plaintiff and her companion, in order to reach their destination, at the request or by the direction of the engineer and brakeman, undertook to pass around in front of the engine, and while in the act of doing so, and when in front of and within a few feet from the engine, the engineer suddenly blew an unusually and mv necessary loud whistle, and allowed an unusual and unnecessary amount of steam, to escape from the engine, we think that the plaintiff is as much entitled to recover for the injuries sustained as the direct result of fright caused by such conduct on the part of the servants of the defendant as she would have been had said servants, in disregárd of her position, suddenly moved the train forward and thereby injured her. On the other hand, the plaintiff was entitled to no greater caution on the part of the servants of the defendant than she would have been entitled to had' she crossed the tracks of the defendant on the street crossing while the engine was standing near the crossing, and if, as stated by the engineer and hrakeman, the engineer, in answer to the singal of the hrakeman, blew only two short whistles, as required by the rules of the defendant and in the usual manner, and permitted only the usual amount of steam to escape, the plaintiff was not entitled to recover. Duvall v. B. and O. R. R. Co., 73 Md. 516; P., W. and B. R. R. Co. v. Burkhardt, 83 Md. 516; Riley v. New York, etc., R. Co., 90 Md. 53; 33 Cyc. 937.

Counsel for the appellant further contends that the statements of plaintiff’s witnesses' are too improbable to be accepted by the Court. The relative weight of the plaintiff’s and defendant’s evidence is, however, a matter exclusively for the jury. In this State the Court may pass upon the admissibility and legal sufficiency of evidence, but in doing so it must assume the truth of the statements offered or made, and cannot undertake to determine their weight. The principle applied in Baltimore Traction Co. v. Helms, 84 Md. 515, and N. C. Ry. Co. v. Medairy, 86 Md. 168, cannot be applied to statements of the plaintiff’s witnesses in this case.

During the trial the defendant reserved eleven exceptions to the rulings of the Court on the evidence. In the first and second exceptions the plaintiff was asked to state what caused her to fall, and to compare the sound of the whistle of the engine at the time of the accident with the whistles of engines she had heard on other occasions. She had the right to show how the accident occurred, and having stated that she had very often heard engines blow when she was only about five feet from them, there was no objection to her comparing the sound of the whistle that frightened her with the sound of other whistles she had heard. There is no serious objection to the evidence referred to in the third exception. The plaintiff had testified that she was familiar with the crossing in question, and that there were eighteen or twenty tracks at that point, and when asked, without objection, whether or not engines were frequently on and over the crossing, she replied, “’Yes, we had to wait several times.” She did not say that she had been required to wait there over five minutes several times, and we do not see how the defendant could have been injured by her reply. The same may be said of the statement of Miss Trieber, in the fifth exception, that the blowing of the whistle and' the “exhaust of steam” stunned her for a while. Miss Trieber did not fall in consequence of the shock, and as by the prayers the finding of the jury was limited to the effect of the whistle and sfeám upon the plaintiff, it is not' probable the defendant was prejudiced by this testimony, even if it be, strictly speaking, inádmissible. What we have said in reference to the second exception applies to the fourth. This evidence of Miss Trieber was offered for the purpose of showing that the whistle was unusually loud. In the sixth exception the witness was asked to state whether she had noticed any change since the accident in the appearance of the plaintiff. Counsel for the defendant objected, but stated that if the injury referred to her face he did not object, but did object if it referred to her health. The answer of the witness was, “I notice in her face, I think the left side, her eye, her cheekbone is higher than the other one, and her voice does'not seem the same as it did before the accident occurred. Her mouth is drawn.” This answer seems to be fairly within the qualification of the objection. The seventh, eighth, ninth, tenth and eleventh exceptions are to questions asked Dr. Laughlin, as an expert. This witness was asked what would he the natural and probable effect upon the nervous system of a woman of suddenly subjecting her to a loud noise that greatly frightened her, “with reference to the control of her muscular movements.” In answer to that question and practically the same question in the ninth exception, the witness replied that it would impair her nervous system and her control of “her muscular movements”. It was encumbent upon the plaintiff to show that she was frightened and that her fall was the result of the fright, and this evidence was admissible as tending to support her statement that fright caused her to fall. The witness was not able to answer the questions in the eighth, tenth and eleventh exceptions, and there was consequently no injury to the defendant.

At the conclusion of the testimony the plaintiff offered two prayers, which were granted by the Court, and the defendant ten. The defendant’s second, third, fourth, eighth and ninth prayers were granted and the others were rejected. To the granting of the plaintiff’s prayers and to the refusal of the Court to grant defendant’s rejected prayers the defendant excepted. By the fifth prayer of the defendant the Court was, in effect, asked to instruct the jury that if they found that the plaintiff had been using the crossing for about eight months previous to the accident, and had frequently heard the engine whistle and blow off steam when in close proximity thereto, then the injury of the plaintiff was not the natural and reasonable result of the blowing of the whistle or the escape of .the steam, and she was not entitled to recover, unless the Blowing of the whistle, etc., was done for the purpose of frightening the plaintiff, and by its seventh prayer it asked for an instruction that the plaintiff was not entitled to recover unless the jury found that the “blowing of said whistle and the expulsion of said steam was done in such an unusual and unnecessary way as to show a reckless disregard of the effect thereof upon the plaintiff.” These prayers ignore- the effect of the evidence tending to show that the whistle was unusually loud, and the duty of the defendant, under the circumstances shown by the plaintiff’s witnesses, to exercise reasonable care to avoid injuring her, and were therefore properly rejected. The defendant’s sixth, eighth and ninth prayers, in so far as they are free from objection, are covered by its second prayer, which was granted. The reporter is requested to set out in his report-of the case the. plaintiff’s first prayer, and the defendant’s second, sixth, eighth and ninth prayers. The plaintiff’s first prayer is entirely in accord with what we have said in disposing of the demurrer and the defendant’s first prayer to take the case from the jury. The plaintiff’s second prayer, which relates to the measure of .damages, is substantially in the usual form, and we do not understand that it was objected to except upon the ground that the case should have been taken from the jury.

Rinding no reversible error in any of the rulings of the (hurt below, we must affirm the judgment.

Judgment affirmed, with costs.