Schmucker, J.,
delivered the opinion of the Court.
The appellant sued the appellee in the Court of Common Pleas of Baltimore City for damages for crushing his foot between two cars of a freight train. In the trial of the case below the Court, at the close of the plaintiff’s evidence, granted the defendant’s prayer directing the jury to render a verdict in its favor because of contributory negligence on the part of the plaintiff. From the judgment entered on the verdict so rendered the plaintiff appealed.
There is but one bill of exceptions in the record and that is
based upon the Court’s action in granting the prayer holding that the undisputed evidence showed that the plaintiff had been guilty of negligence directly contributing to cause the injury complained of.
The accident happened at or near the point where the appellee’s branch line of railroad from Baltimore City to Locus "Point crosses Barney street. ■ This crossing is on a curve in the railroad track and about the middle of a stiff up-grade on which- almost every long freight train becomes stalled and is compelled to wait for the assistance of a helping engine,. These stalled freight trains currently block the street crossings, on the grade, for from ten minutes to an hour or more at a. time. The helping engine usually comes up behind the train and'assists by pushing it. It has long been the custom for the; helping engine to blow its whistle as a signal, as it approaches-the rear of the train, which is answered by a blast from the whistle-on the engine at the head of the train. Both of these signals are given before the train moves. This state of affairs has continued for eighteen or twenty years.
- The land lying southwest of the railroad is occupied mainly by factories and similar industrial establishments whose operatives and employees largely reside on the other side of the road, where the improvements are almost exclusively dwelling houses. Many of these employees daily cross the railroad tracks at Barney street in going back and forth between their houses and the factories. For eighteen or twenty years it has been the custom of these employees, when a freight train is stalled on the track at the crossing, to cross through the train by jumping over between the cars or crawling underneath them without, so far as the evidence shows, any objection or protest on the part of the persons in charge of the train. At times fifty or more of the men working in the factories were seen go through standing trains at the crossing in that manner in a single day.
At noon of the 29th of December, 1902, the appellant, who was employed at the Thompson Chemical Works on the south of the railroad, started to go along Barney street to his residence,
which was north of the track, for his dinner. When he reached the track he found a long freight train stalled there. Not desiring to cross the train he walked along side the track to Hanover street which was quite a thoroughfare hoping to get through there but he found that street also blocked by the train. He then returned to Barney street where he met one of the brakeman of the train who told him to jump over it, but he crawled underneath the cars and crossed in that way. On his return from dinner toward the factory he went first to Hanover street and found the train still standing across it. He then walked down toward Barney street near which he met the same brakeman who again told him to cross the train. The appellant hesitated to cross when the brakeman told him he had plenty of time and further said that when they got help they had to give a signal to the engine ahead before starting the train adding, “we can’t leave here until we get a helper and probably we will be here an hour.” The appellant thereupon took hold of two cars and attempted to get upon the bumpers between them so as to cross over the train, but just as he got his foot upon the bumper the train started without signal or warning and crushed his foot between the bumper and the car so badly that it had to be amputated.
The appellee admits the negligence of its own servants by requesting the Court to instruct the jury that the appellant was guilty of contributory negligence. The only question that we are called on to determine is whether the appellant’s own conduct at the time of the accident to him was such as to justify the Court below in holding as a matter of law that he was guilty of contributory negligence. This question can be correctly answered only in the light of the special and somewhat unusual facts of the case.
The appellant was not a passenger and was therefoie not entitled to the exercise by the appellee of the highest degree of care and diligence in his behalf. Nor was he a mere trespasser to whom the appellee owed only the duty of abstaining from wantonly and willfully injuring him. If we admit that it was beyond the scope of the brakeman’s employment to bind
the appellee by the express invitation to cross the train which he gave to the appellant at the time of the-accident, we cannot close our eyes to the fact that for many years the appellee had acquiesced without objection in the habit of the men working in the factories in that vicinity, of crossing between or under its stalled trains which impeded their passage to and from their'daily labor. Under somewhat similar circumstances we said in
Siacik’s Admr.,
v.
N. C. R. R. Co.,
92 Md. 219, the railroad company’s “servants might have known from experience and ordinary observation of the blockading of streets by railway cars that some people would likely climb over, between, or, if small enough, under the cars in order to cross the street.” A jury might conclude that this conduct of the appellee in the present case in so long permitting the crossing of its stalled trains amounted to an implied assent or invitation to the appellant to cross between the cars of the train which on the day of the accident for so long time closed the passage.from his home to his place of labor. If so the appellee was bound to exercise reasonable care to protect him in accomplishing the crossing which he was with its consent attempting to make.
Swift
v.
Staten Island R. T. Co.,
123 N. Y. 650;
Taylor
v.
Del. & Hud. Canal Co.,
113 Pa. St. 162;
C. B. & Q. R. Co.
v.
Murowski,
179 Ill. 77;
Clampit v. St. P. K. C. Ry. Co.,
84 Iowa, 71.
The appellant does not appear to have attempted to make the crossing in a negligent manner. To cross over the bumpers between two freight cars when at rest is not necessarily a dangerous operation. The peril of the situation arises from the danger of the cars starting before.the crossing is completed. In the present case the appellant used reasonable care to ascertain when the train would start by making inquiry of one of the brakeman in charge of it who informed him that it would .remain for sometime longer until a helping engine came which would signal its approach by blowing its whistle. Assuming that the appellant had the implied assent of the appellee to make this crossing we do not think it can be said as a matter of law that he was guilty of-contributory negligence in at
tempting to make it in the manner appearing from the evidence.
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Schmucker, J.,
delivered the opinion of the Court.
The appellant sued the appellee in the Court of Common Pleas of Baltimore City for damages for crushing his foot between two cars of a freight train. In the trial of the case below the Court, at the close of the plaintiff’s evidence, granted the defendant’s prayer directing the jury to render a verdict in its favor because of contributory negligence on the part of the plaintiff. From the judgment entered on the verdict so rendered the plaintiff appealed.
There is but one bill of exceptions in the record and that is
based upon the Court’s action in granting the prayer holding that the undisputed evidence showed that the plaintiff had been guilty of negligence directly contributing to cause the injury complained of.
The accident happened at or near the point where the appellee’s branch line of railroad from Baltimore City to Locus "Point crosses Barney street. ■ This crossing is on a curve in the railroad track and about the middle of a stiff up-grade on which- almost every long freight train becomes stalled and is compelled to wait for the assistance of a helping engine,. These stalled freight trains currently block the street crossings, on the grade, for from ten minutes to an hour or more at a. time. The helping engine usually comes up behind the train and'assists by pushing it. It has long been the custom for the; helping engine to blow its whistle as a signal, as it approaches-the rear of the train, which is answered by a blast from the whistle-on the engine at the head of the train. Both of these signals are given before the train moves. This state of affairs has continued for eighteen or twenty years.
- The land lying southwest of the railroad is occupied mainly by factories and similar industrial establishments whose operatives and employees largely reside on the other side of the road, where the improvements are almost exclusively dwelling houses. Many of these employees daily cross the railroad tracks at Barney street in going back and forth between their houses and the factories. For eighteen or twenty years it has been the custom of these employees, when a freight train is stalled on the track at the crossing, to cross through the train by jumping over between the cars or crawling underneath them without, so far as the evidence shows, any objection or protest on the part of the persons in charge of the train. At times fifty or more of the men working in the factories were seen go through standing trains at the crossing in that manner in a single day.
At noon of the 29th of December, 1902, the appellant, who was employed at the Thompson Chemical Works on the south of the railroad, started to go along Barney street to his residence,
which was north of the track, for his dinner. When he reached the track he found a long freight train stalled there. Not desiring to cross the train he walked along side the track to Hanover street which was quite a thoroughfare hoping to get through there but he found that street also blocked by the train. He then returned to Barney street where he met one of the brakeman of the train who told him to jump over it, but he crawled underneath the cars and crossed in that way. On his return from dinner toward the factory he went first to Hanover street and found the train still standing across it. He then walked down toward Barney street near which he met the same brakeman who again told him to cross the train. The appellant hesitated to cross when the brakeman told him he had plenty of time and further said that when they got help they had to give a signal to the engine ahead before starting the train adding, “we can’t leave here until we get a helper and probably we will be here an hour.” The appellant thereupon took hold of two cars and attempted to get upon the bumpers between them so as to cross over the train, but just as he got his foot upon the bumper the train started without signal or warning and crushed his foot between the bumper and the car so badly that it had to be amputated.
The appellee admits the negligence of its own servants by requesting the Court to instruct the jury that the appellant was guilty of contributory negligence. The only question that we are called on to determine is whether the appellant’s own conduct at the time of the accident to him was such as to justify the Court below in holding as a matter of law that he was guilty of contributory negligence. This question can be correctly answered only in the light of the special and somewhat unusual facts of the case.
The appellant was not a passenger and was therefoie not entitled to the exercise by the appellee of the highest degree of care and diligence in his behalf. Nor was he a mere trespasser to whom the appellee owed only the duty of abstaining from wantonly and willfully injuring him. If we admit that it was beyond the scope of the brakeman’s employment to bind
the appellee by the express invitation to cross the train which he gave to the appellant at the time of the-accident, we cannot close our eyes to the fact that for many years the appellee had acquiesced without objection in the habit of the men working in the factories in that vicinity, of crossing between or under its stalled trains which impeded their passage to and from their'daily labor. Under somewhat similar circumstances we said in
Siacik’s Admr.,
v.
N. C. R. R. Co.,
92 Md. 219, the railroad company’s “servants might have known from experience and ordinary observation of the blockading of streets by railway cars that some people would likely climb over, between, or, if small enough, under the cars in order to cross the street.” A jury might conclude that this conduct of the appellee in the present case in so long permitting the crossing of its stalled trains amounted to an implied assent or invitation to the appellant to cross between the cars of the train which on the day of the accident for so long time closed the passage.from his home to his place of labor. If so the appellee was bound to exercise reasonable care to protect him in accomplishing the crossing which he was with its consent attempting to make.
Swift
v.
Staten Island R. T. Co.,
123 N. Y. 650;
Taylor
v.
Del. & Hud. Canal Co.,
113 Pa. St. 162;
C. B. & Q. R. Co.
v.
Murowski,
179 Ill. 77;
Clampit v. St. P. K. C. Ry. Co.,
84 Iowa, 71.
The appellant does not appear to have attempted to make the crossing in a negligent manner. To cross over the bumpers between two freight cars when at rest is not necessarily a dangerous operation. The peril of the situation arises from the danger of the cars starting before.the crossing is completed. In the present case the appellant used reasonable care to ascertain when the train would start by making inquiry of one of the brakeman in charge of it who informed him that it would .remain for sometime longer until a helping engine came which would signal its approach by blowing its whistle. Assuming that the appellant had the implied assent of the appellee to make this crossing we do not think it can be said as a matter of law that he was guilty of-contributory negligence in at
tempting to make it in the manner appearing from the evidence.
(Decided March 23rd, 1905.)
We have repeatedly held that negligence direct or contributory is ordinarily a question for the jury who must solve it by a consideration of the facts of the case before them. In
Cook
v.
Traction Co., 80
Md. 551, we said: “Negligence is essentially relative and comparative, not absolute. It is not even an object of simple apprehension apart from the circumstances out of which it grows. As these circumstances necessarily vary in their relations to each other, under different surroundings, they inevitably change their original signification and import. * * * The existence of negligence is therefore to be sought in the facts and surroundings of each particular case. * * * “Where the nature and attributes of the act relied on to show negligence contributing to the injury can only be correctly determined by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it and it is not for the Court to determine its quality as matter of law.
Fitzpatrick's case,
35 Md. 32;
Dougherty’s case,
36 Md. 366;
Miller’s case,
29 Md. 252; etc.”
We do not think that the present case should be controlled by the authorities relied on by the appellee in support of the proposition that a person who voluntarily takes an exposed position upon a train not designed for passengers assumes the special risks of that position even if he takes it by the express or implied permission of the conductor. The long course of conduct of the appellee in dealing with those whose necessities require them to cross a track on which its freight trains are frequently stalled for a considerable time make the present case one whose circumstances should be considered and passed upon by the jury in determining whether the appellant was guilty of contributory negligence when he was injured.
The Court below erred in taking the case from the jury and for that error the judgment must be reversed.
Judgment reversed with costs, and new trial awarded.