Balto. Ohio Railroad Co. v. State , 190 Md. 227 ( 1948 )

It is well settled that in no case ought the Court to take the question of negligence from the jury unless the conduct of the plaintiff relied upon as amounting to contributory negligence is established by clear and uncontradicted evidence, and, when the nature of the act relied on to establish contributory negligence can only be determined by considering all the circumstances attending the transaction, it is within the province of the jury to pass upon and characterize it, and it is not for the Court to determine its quality as a matter of law. Washington R.R. Co. v.Sullivan, 136 Md. 202, 110 A. 478; Krause v. Baltimore O.R.Co., 183 Md. 664, 673, 39 A.2d 795. The Court must assume the truth of plaintiff's evidence although it may have been contradicted in every detail.

In the case before us there is no dispute that the warning bell at the crossing was not working at the time that Andrews was killed by the train, and that it had been out of order for two days prior to that time. Andrews was familiar with the road, although he did not use it frequently. There is no evidence to show that he had any knowledge that the warning bell was out of order when he attempted to cross the track. McGaney, an inmate of the Maryland Reformatory for Males, testified he was twenty-five feet from the crossing at the time of the accident and Andrews stopped about ten feet from the east rail of the track and for about five seconds looked up and down the track before attempting to cross. There was other testimony that at ten feet from the track one could not see up the track approximately fifty feet and at twenty feet one could not see up the track at all and at that distance one is back of the hedge. A witness, who lived at the crossing, testified that at fifteen feet from the track a train could not be seen more than seventy-five feet from the crossing. Of course, the weight of the evidence is a question for the jury and not a question for the trial judge or for this Court on appeal. This evidence supports the contention that Andrews stopped, looked, and listened and, seeing no train and hearing no bell, he attempted to cross the track believing it was safe for him to do so. It also supports the contention that Andrews relied on the silence of the bell before moving into a position of danger after he stopped. The law as stated in the case of Baltimore O.R. v. Windsor, 146 Md. 429, 438, 126, A. 119, 122, and quoted in the majority opinion, that "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 that whether proper care has been exercised under such circumstances is ordinarily a jury question", is applicable here. I think that Judge Mish was clearly correct in refusing to rule that Andrews was guilty of contributory negilgence as a matter of law. See also Caryl v.Baltimore Transit Co., 190 Md. 162, 58 A.2d 239. The evidence in the case at bar in my opinion is clearly distinguishable from that in Baltimore O.R. Co. v. Bruchy, 161 Md. 175,155 A. 346, relied on in the majority opinion.