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dismissed against the Pennsylvania Railroad Company, and from a judgment in favor of defendant Philadelphia, Baltimore & WashIngton Railroad Company plaintiff appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and PATTISON, JJ.

S. S. Field, for appellant. Shirley Carter, for appellee.

BOYD, C. J. The appellant sued the Pennsylvania Railroad Company and the appellee for killing two of his horses, while being driven at a point on the railroad used by the defendants, where a public highway is alleged to cross the tracks. During the trial the plaintiff dismissed the case against the Pennsylvania Railroad Company, and it was afterwards withdrawn from the jury on a prayer offered by the appellee, on the ground of contributory negligence of the driver.

The first two bills of exception embrace rulings on the admissibility of evidence and the third presents the action of the court on the prayers. As that is the most important question, we will first consider the prayer of the defendant above referred to.

The accident happened about 6:35 o'clock on the evening of July 4, 1908. Albert Jacobs, who then lived on the Wilton stock farm, which belonged to the plaintiff, and of which Dr. Tubbs, the stepfather of Jacobs, was manager, was driving two horses of the plaintiff which were hitched to a wagonette. There were seven persons in the wagonette, including the driver and a little girl. Although the appellee does not concede that the road over which the team was being driven was a public highway, there was undoubtedly evidence tending to show that it was, and it will be so treated in the consideration of the case. The railroad at the point where the accident happened runs north and south and the highway runs east and west-at least they are sufficiently near those directions for the purposes of our discussion, and we will so speak of them. There are two tracks at this crossing-which is known as Dinsmore's Crossing the one on which the trains run from Philadelphia to Baltimore being spoken of in the evidence as the south track, and the other the north track. The nearest station north of the crossing is Swan Creek Station, and the nearest south (towards Baltimore) is Aberdeen Station. Oakington signal tower is 6,800 feet, Swan Creek Station 2,700 feet, a bridge over Swan Creek about 1,400 feet, and there is a whistling post 1,081 feet north of the crossing. There are about two miles of straight track from Oakington past Dinsmore's Crossing to Aberdeen. There is a downgrade from a point about 1,000 feet south of Oakington to a point near the Swan Creek bridge, where an upgrade begins and continues to Aberdeen, about a mile and a

half; there being this upgrade on the southbound track at Dinsmore's Crossing. A little north of Swan Creek Station there is an overhead bridge which carries a highway over the railroad tracks, known as the Robin Hood road.

[1] The appellant argued that the driver was not the plaintiff's servant, and the team was not being used on his business; and hence he was not responsible for the contributory negligence of the driver, even if that be held to exist. But the declaration expressly alleges in the first count that the team was being driven "by the servant of the plaintiff, using due care," and in the second count it is alleged that the carriage and horses were being driven "by the servant of the plaintiff," that "the driver of said horses used ordinary and reasonable care in approaching and going upon said crossing," and "without any negligence on the part of the plaintiff or his servant the said horses were killed," etc. Moreover, the plaintiff upon the stand did not make such claim as was made at the argument, and by a prayer he offered he sought to submit the question of the contributory negligence of the driver to the jury. Under such circumstances, we are not called upon to enter upon a discussion of the effect of the alleged contributory negligence of the driver upon the right of the plaintiff to recover, as the plaintiff cannot bring the defendants into court to answer the charges thus deliberately made by him, take such position as he did during the trial, and then ask us on appeal to adopt a view wholly contrary to the one thus taken by him, which was not even raised in the lower court so far as disclosed by the record.

[2] There is a conflict between the witnesses for the plaintiff and those for the defendant as to whether any signals were given of the approach of the train, but, as the case is presented, we must assume the testimony of the witnesses for the plaintiff to be correct, as far as it goes. Having disposed of those questions, we will now refer to such of the testimony reflecting upon the contributory negligence of the driver as we deem proper to show why we reach the conclusion to be announced.

About the place where the accident occurred the railroad runs through a cut, and the highway is also in a cut to a point near the railroad tracks. The driver and other witnesses who were in the wagonette testified that they stopped in the cut, as they approached the crossing, about 30 feet from it, and listened for trains; that from that point they could not see any distance up the track; that they knew the crossing was a dangerous one; and that one of them (Mrs. Still) pointed to the sign board which was at the crossing, and said, "Now, stop, look, and listen." After stopping and listening, not hearing any train, the driver started the horses, and, just as they got upon the south-bound track, they were struck by the train known as the "Congressional Limited," which was running very fast-the engineer said he thought about 50 miles an hour at that point, although sometimes it reached a speed of 65 or 75 miles an hour between Wilmington and Baltimore. The horses were killed, and the wagonette and harness were injured, but fortunately none of the persons riding in the wagonette were seriously hurt, and it was not even upset.

It had a cross-seat in front, on which sat the driver (Jacobs) and his grandmother (Mrs. Still), and there were two seats running lengthwise of the wagonette, one on each side, and those sitting on them entered from the rear. Mrs. Watson was seated on the left-hand side, directly back of Mrs. Still. Mrs. Tubbs, the mother of Albert Jacobs, was sitting in the rear on the south side. Mrs. Jay was somewhere on that side and the others were not located in the testimony.

It is clear that from where they said the wagonette was stopped neither the driver nor any one in it had an opportunity to see a train approaching from the north, nor had they the same opportunity to hear that they would have had, if they had not been in the cut. The Baltimore & Ohio Railroad also runs near the appellee's road, and one of the witnesses said they could not hear any trains on either road. The engineman, fireman, conductor, and baggage master, who were on the train, and a trackwalker, who was approaching the crossing, swore that the signal was given for the crossing, but the occupants of the wagonette swore they did not hear any signal, and one or two of them said that none was given, and in considering this prayer we must assume the testimony of the latter to be correct. If the train was running 50 miles an hour, it only took 16 seconds to go from the whistling post to the crossing, and, if 60 miles, only 12 and a fraction seconds. Or, to state it another way, the train in the one case would move about 67 feet and in the other about 88 feet in a second, while, if the vehicle was going at the rate of 6 miles an hour, that would be nearly 9 feet a second, or at 4 miles an hour, about 6 feet a second.

But, although the witnesses for the plaintiff testified that they stopped about 30 feet from the crossing, it is very evident that they had no definite knowledge of the distance, and none of them explained whether they meant that the horses' heads were that distance, or whether they referred to the wagonette, and, if so, what part of it. As Dr. Tubbs testified that the distance from the horses' heads to the eyes of the driver was 17 feet and to the rear end of the wagonette about 26 feet, it will be seen that it was a very indefinite statement to say they stopped 30 feet from the crossing. Jacobs said: "I stopped, I guess, about 30 feet

to say how many feet, or how close they were, but she thought that the horses' heads would have been on the track before they could have seen far enough down the track to be safe. Mrs. Jay said: "We stopped, I suppose, about 30 feet back." She also said the cut was higher than the wagonette. Mr. Watson, whose testimony was ruled out, said: "When we got within about 30 feet of the track, the driver stopped the team."

On the other hand, Mr. Stone, a civil engineer and assistant supervisor of the Maryland Division of the railroad company, said he measured from the west rail of the southbound track, in the middle of the road, four distances, 12, 20, 25, and 30 feet; that standing 12 feet from the track on the road he could see north, up the railroad track, to Oakington signal tower (6,800 feet), could see from that point the railroad track and a train on it anywhere between the signal tower and the crossing; from a point 20 feet from the west rail there is the same view as at the point 12 feet; that at 25 feet from the track there is a clear view of the railroad track for 3,000 feet, or to a point beyond Swan Creek Station, could have seen a train anywhere in that distance on the southbound track; and that at a point 30 feet from the west rail he could see 235 feet up the track. On cross-examination he said the right of way of the railroad is 70 feet wide, that the center of the right of way is midway between the two tracks, and from that center line to the west rail is a little less than 81⁄2 feet. It was therefore 261⁄2 feet from the west rail of the south-bound track to the west side of the right of way. He also said that "after you pass 30 feet from the west rail the view of the track to any considerable distance was cut off by the bank." Six or seven witnesses who were present when the measurements were made and the observations taken corroborated Mr. Stone. One of them was a trackwalker on that section of the railroad, and was near the crossing when the accident happened. He said that the grass had been mowed on the west side of the track, north of the crossing, all the way up to the top of the bank, and about three or four feet over the top just before the day of the accident, and he and others swore that there had been no changes in or about the crossing from the time of the accident to the time of the observations.

Although the observations were made in the winter time-just before the trial of the case and the accident was on July 4th, it is perfectly apparent that the witnesses for the plaintiff did not accurately know the distance from the track at which they stopped. It is not shown what part of the wagonette Mrs. Jay was in, but she said, "The cut is higher than the wagon," and it is evident that she was at least far enough back to be in the cut. She admitted on cross-examinacob's testimony on this point was: "Q. What prevented you from seeing north? A. The bank. Q. Anything else there to obstruct the view? A. No, sir; nothing but a bank and a little clump of wood, but that is farther up and the bank was the only thing." It must be true that, if there is in the winter time such views as were testified by the seven or eight witnesses from the points indicated, the bank could not have obstructed their view while the parties in the wagonette were at any of those points. It would further seem to be perfectly apparent that, if their view was obstructed at any of those points, it was only by grass or little bushes which is all they testified to as being there in July, and it is difficult to understand why they could not have at least heard the rumbling of a train going 50 or more miles an hour, if there was no other obstruction, and they were not behind the bank. The bank might possibly account for their not hearing, but it cannot be said that if a train is going upgrade at such a speed, or even if there was no grade, that persons listening for it could not hear its rumbling, if there was no other obstruction than grass and some small bushes. It is true that Mr. Watson said that there was a downgrade from Swan Creek Station to the place of accident, but the assistant supervisor of the road and the engineman certainly knew more about the grade than he did, even if his testimony is treated as before us.

30 or 40 feet, because I cannot judge." Ja- | seen or heard it within 30 feet of the crossthe crossing, was evidence of greater reck- | can be closer to the tracks. A traveler

The testimony therefore clearly shows that Jacobs must have stopped the horses when he was so far back that he was behind the bank, where they could not hear the noise the train must necessarily have made, and then did not stop again. If he could not hear or see where he stopped, then clearly he should either have stopped again, or have gone so carefully and slowly toward the track that he could at least have the horses under control. If Dr. Tubbs is correct in saying that it was 17 feet from the horses' noses to the eyes of the driver, and that all view was cut off from that point, and they could not hear a train running 50 miles an hour, a prudent driver might well bave suggested that Mr. Watson or some one get out and look up and down the tracks. Mrs. Jay said the trains did not always whistle at the post. All of them knew the crossing was a dangerous one, and the tracks could have been seen for two miles, up and down, from this crossing. But, without deciding that it was contributory negligence for the driver not to adopt that course, there is abundant evidence to show that the accident was caused by his recklessness in rapidly driving towards the crossing. If he could not see or hear the train from the point he stopped until the horses were on the track, then it was gross negligence to approach the

ing, as the testimony of the defendant's witnesses tends to show, then it was only by reason of his negligence that he did not see or hear it.

The wagonette was large enough to carry ten passengers, and on this occasion there were seven, including the child and driver. Jacobs said: "I stopped, I guess, about 30 feet back, and did what the law requires, stop, look and listen. You cannot see anything, cannot see any distance up the track, and I started off and started my team quickly to get on the track and get over it if I could. If there was anything coming, I couldn't see anything, and when I got over and looked south Mr. Watson made some exclamation-I don't know just what it wasbut I looked that way (indicating) and I immediately took hold of my team and tried to pull them up but the momentum was so great I could not stop them." Mrs. Tubbs said: "We started up, and, if I remember correctly, I asked Albert to hurry across, because that was the way I always did it myself, and I would listen and then hurry across for fear another train would catch me in the meantime." Again she testified on cross-examination: "Q. And then you say you told him to go ahead quick when he started up? A. Yes, sir; that is always my instructions. Q. And he did start up quick? A. Yes, sir." Mrs. Still testified: "My daughter said, 'We will hurry across anyhow,' and my grandson was sitting on my right, and he straightened out. The horses turned, and he started as fast as he could." She also said: "We heard nothing at all, but there are so many trains on that road, and we are always fearful in crossing."

Jacobs was looking south, and the only one who was supposed to look north sat in the wagonette facing the south, and had to turn around to look north. The driver undertook to explain his inability to stop the team by saying that owing to a downgrade on the highway the momentum was so great that he could not stop them. While some of the witnesses so speak of the grade, all of them admit it was a very slight one. The trackwalker said: "The road is a slight downgrade to the railroad crossing, a grade of about three inches on either side, I don't think over that." He did not explain whether he meant it was three inches to the hundred feet or what, but it was evidently a slight grade. But, if there was a grade which interfered with Jacobs stopping the horses as soon as he could otherwise have done, it made his negligence all the greater. He and the others in the wagonette were familiar with the road, and to start rapidly downgrade with a heavy wagonette, capable of carrying ten passengers and actually having seven in it, toward railroad tracks, with no opportunity to see or hear the approach of trains, as the lessness than can often be found referred to in the reported cases. The horses were perfectly gentle. Mrs. Tubbs said they were "not in the least" afraid of trains, and Dr. Tubbs said, "They were perfectly safe for everybody, and that is evidenced by their sacrificing their own lives that day by obeying orders." As the driver and others with him knew the dangerous character of the crossing, that trains were frequently passing and must have known the great speed at which they did pass, as the most of them lived in the neighborhood, if they could neither see nor hear the approach of trains, until they were nearly on the tracks, surely the most ordinary care demanded of him that he should stop his horses before crossing the tracks, and not start rapidly at a point 30 feet off, and hurry through this peculiar space (where trains could neither be seen nor heard, although within a few feet of the tracks which were straight for two miles) until they finally reached the danger point, when it was impossible to check the horses by reason of the momentum which was largely caused by the speed at which he was going. If a driver is caught when attempting to cross over in front of a train which he sees, he is generally held to be guilty of contributory negligence, and it is not easy to understand why he is not equally so when he is caught by one which he can neither see nor hear, but has reason to fear that it may be approaching, and yet does not adopt the precautions which every person of ordinary intelligence ought to know should be adopted. Jacobs' statement that "I started off and started my team quickly to get on the track and get over it if I could" is of itself sufficient to convict him of gross negligence. It is true he and the others in the wagonette said they stopped, looked, and listened at the point about 30 feet away, and that they neither heard nor saw any trains, but that was, according to their testimony, because they could not see or hear any where they were. The fact is, as shown by the results, that this train was on the south-bound track, and if the plaintiff's testimony is correct that those in the wagon did listen, but they did not hear it, it must have been because they could not have heard it where they stopped, but, even if no whistle was blown, they certainly could have heard the rumbling of the train if they had stopped nearer the track, and we think the testimony conclusively shows that they could have seen it in time to avoid the accident, if they had looked from a point nearer the crossing.

It is now thoroughly established in this tate that, if the view be obstructed, it is the Muty of a traveler to stop, look, and listen Devore attempting to cross a railroad. That rule is not complied with by merely stopping, looking, and listening once, if the object in

might as well stop, look, and listen a quarter of a mile from the railroad as 30 or 40 feet away, if he can neither see nor hear at the latter point, although he can before he attempts to cross the track. Of course, courts cannot fix any definite distance from the tracks at which travelers must stop, but that requirement varies according to circumstances. It may be that the traveler can better determine whether it is safe to cross by stopping at a point 50 or 100 feet from the crossing than he could by stopping closer, as sometimes the view up and down the track is more extensive at a remote than at a closer point, owing to the conditions, but it would be useless to adopt the rule which requires a traveler on a highway to use care, before attempting to cross railroad tracks, if such care is to be exercised away from the track, and then utterly neglected as he approaches near to it. That rule is for the protection of travelers on a highway as well as of the passengers and employés on the trains. It is not by any means an unheard of thing for an engineman or fireman to lose his life or limb, or at least be seriously injured, by reason of his engine being thrown off the track by the careless act of some traveler on a highway. The traveling public of the present day de mands speed, and distance is overcome by it. It is to be hoped that the day is not far distant when grade crossings will be unknownat least such as are frequently used by the public-but until that time arrives the law at least must protect passengers and trainmen to the extent of discouraging recklessness on the part of those crossing the tracks.

Without deeming it necessary to review the authorities at length, there are some in this state which we think are conclusive against the right of the plaintiff to recover. The cases of Phil. & Balt. R. R. Co. v. Holden, 93 Md. 417, 49 Atl. 625, and A. W. & Β. R. R. Co. v. State, use of Hickox, 104 Md. 659, 65 Atl. 434, are perhaps more applicable to this than any of the others. It is true that in both of them the accidents were at private crossings, but in the former, where the negligence of the defendant relied on was the failure to give a signal at an accustomed place, the court, after saying that the railroad company was not required to give a signal at private crossings, said: "But, if we assume that the plaintiff had been injured at a public crossing, there can be no doubt that the failure to give the signal would not have been admissible to excuse him; that is, to show he was not guilty of contributory negligence." In the Hickox Case we referred to a number of others, including that of Hatcher v. McDermot, 103 Md. 78, 63 Atl. 214, where we held that: "The plaintiff was guilty of contributory negligence for crossing an electric railway on a public crossing without having again stopped, looked, and

as different rulings on them, or either of them, would not change the result.

Judgment affirmed, the appellant to pay the costs, above and below.

(114 Md. 434)

DIDIER et ux. v. MERRYMAN.

(Court of Appeals of Maryland. Jan. 10, 1911.) 1. INJUNCTION (§ 35*) - RESTRAINING TRES

PASS-POSSESSORY RIGHT.

Where, in a bill to restrain defendant's use of a drain as a trespass, complainant alleged that she was in possession of certain property as a life tenant, to which the drain was appurtenant,

and that defendant's use of the drain was es

pecially injurious to her because her property, being of a lower elevation, received all the overflow from the drain if it became overcharged, the bill was not demurrable for failure to allege the source of plaintiff's title, etc.; she being entitled to maintain the same because of injury to her possessory rights.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 77; Dec. Dig. § 35.*] 2. INJUNCTION (§ 118*)-BILL-EXHIBITS. Where complainant's right to an injunction is based on a written instrument in her possession, or to which she has ready access, the instrument, or a copy, should be filed with the

bill.

one hundred and thirty feet distant from the
crossing, where he did stop, look, and listen,
but where his view was obstructed to some
extent." We also referred to Meidling v.
United Ry. Co., 97 Md. 76, 54 Atl. 612, in
which we quoted with approval from Keen-
an's Case, 202 Pa. 107, 51 Atl. 742, 58 L. R.
A. 217, where it was held to be the duty of
the plaintiff "to continue to look until the
track is reached." In that case the plaintiff
could have seen the approach of a car from
a point where he did look until he reached
the crossing, as there was no obstruction ex-
cepting the curtains on his wagon, while in
this case the driver could not see a train,
and did not hear one from the point where
he stopped, and he then ceased his vigilance.
As said in Keenan's Case: "But his misfor-
tune is that he was careful but for an in-
stant, when he should have continued to be
watchful until the track-the real point of
danger-was reached." In the Hickox Case
we said: "It is no excuse for one not to stop,
look, and listen when he is near the track
because he did so further away at a point
where he could not see, if he looked, and
according to the plaintiff's contention, could
not hear if he listened. If his view was ob-
structed, and the sound interfered with, it
made it all the more important for him to
stop again." Again, in speaking of the cross-
ties, which were the obstruction in that case,
we said: "Even if they were only 10 or 12
feet away, if up to that point they obstruct-
ed the view from the private road, it was the
duty of the deceased to again stop, look, and
listen for the train, which he had reason to
expect." The learned attorney for the ap-
pellant undertook to make some distinction
between that case, and this on account of
that expression, "which he had reason to
expect." But in this case the train which
struck the horses was running on schedule
time, and Mrs. Jay said: "The train was the
Congressional Limited, going very fast. It
always goes fast." Mrs. Still, who was sit-
ting by her grandson, the driver, said,
"There are so many trains on that road,
and we are always fearful in crossing." All
of them showed great familiarity with the
railroad at this crossing, and they knew per-
fectly well that a train might be coming at
that very time. Even if there was not one
due, as there was, they knew, as their con-
duct as testified to by them shows, that a
train might pass there at any time. So,
without citing other cases, those and others
referred to in them sufficiently show the
rule in this state to establish beyond contro-
versy that the action of the driver on this
occasion was not only contributory negligence,
but was of a most reckless character, under
the circumstances we have related at length.
Having reached that conclusion, it would
be useless to refer to the other exceptions, Water Courses, Dec. Dig. § 126.*]

[Ed. Note.-For other cases, see Injunction,
Cent. Dig. § 242; Dec. Dig. § 118.*]
3. INJUNCTION (§ 118*) - BILL-EXHIBITS.

Where complainant's right to an injunction restraining defendant's use of a drain appurtenant to complainant's property was fully supported by her possession of the premises and appurtenant drain, her bill was not defective for failure to attach the documents evidencing her right to occupy the premises as life tenant. [Ed. Note. For other cases, see Injunction, Cent. Dig. § 242; Dec. Dig. § 118.*] 4. INJUNCTION (§ 118*) -COMPLAINT.

Where complainant, in a suit to restrain defendant's use of a drain, alleged complainant's possession of the premises to which the drain was appurtenant, and her actual user of the drain for many years, and that defendant, without lawful right, but willfully intending to trespass on complainant's premises, had made a connection with the drain described, the bill was not demurrable for failure to show the nature of complainant's interest in the drain.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 233; Dec. Dig. § 118.*] 5. WATERS AND WATER COURSES (§ 126*)-INJUNCTION-BILL-EXTENT OF INJURY.

Where, in a suit to restrain defendant's connection with a drain appurtenant to complainant's premises, the complaint described the conditions existing prior to defendant's use of the drain, and showed that the capacity of the drain was then overtaxed, that repeated stoppages and overflows had occurred, producing special damage to her by reason of the lower grade of her property as compared with the adjoining premises, and then charged that defendant's wrongful and extensive appropriation of the use of the drain had increased its liability to become choked, and to discharge its contents on plaintiff's lot, and that she was thus exposed to danger of recurring nuisances, it sufficiently described the injury from the trespass; she not being required to wait for the actual recurrence of injury thus shown to be reasonably anticipated.

[Ed. Note.-For other cases, see Waters and

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