
    JOHN BARTON PAYNE, Director General of Railroads, vs. JACOB M. A. HEALEY.
    
      Contributory Negligence — Last Clear Chance — Action Against Railroad Company — Engine “Picking Up" Automobile.
    
    The doctrine of last clear chance applies as against the- defendant when, with ordinary care and caution, he ought to have been aware of plaintiff’s peril, as well as when he was actually aware thereof.
    In an action for injury to plaintiff and to his automobile, caused by a collision of the latter with a semaphore, as a result of its being “picked up” by defendant’s engine at a street crossing and so carried along with the train as far as the semaphore, held that upon the evidence plaintiff’s failure to blow his horn after his automobile became attached to the engine did not, as a matter of law, show contributory negligence.
    In an action for injury to plaintiff and to his automobile caused by the latter’s collision with a semaphore, as a result of its being “picked up”, by defendant’s engine at a street crossing and so carried along with the train as far as the semaphore, held that evidence that defendant’s engineer could have seen the automobile before “picking it up,” and that those in charge of the train were called and signalled to by persons nearby in order to warn them of plaintiff’s perilous position, was sufficient to go to the jury as tending to show that those operating the train, by ordinary care and caution, could have avoided the collision with the semaphore.
    Evidence as to whether those operating the train used proper care and caution before and while crossing the street was admissible, not to determine defendant’s liability for the injury, if ■any, caused by the collision of the train with the automobile, this not being involved in the suit, but because such evidence aided in determining whether defendant’s employees by proper care and caution could have avoided the collision of the automobile with the semaphore, after they knew, or by reasonable care and caution could have known, of plaintiff’s perilous situation caused by the collision of his automobile with defendant’s engine.
    
      Decided June 28th, 1921.
    
    Appeal from the Circuit Court for Washington County (Wagamaw, J.).
    Action by Jacob M. A. Healey against John Barton Payne, Director General of Railroads, operating the Cumberland Valley Railroad. E'rom a judgment for plaintiff, defendant-appeals.
    Affirmed.
    The cause was argued before Boyd, C. J., Briscoe, Thomas, Pattisoh, Ureter, Stockbridge, Ahkiets, and Oeeutt, JJ.
    
      Williann P. Lane and Henry H. Keedy, Jr., for tbe appellant.
    
      J. Lloyd Harshman and Albert J. Long, with whom was Charles D. Wagaman on the brief, for the'appellee.
   Pattison, J.,

delivered the opinion of the Court.

The appeal in this case is from a judgment recovered by tbe appellee, Jacob M. A. Healey, against the appellant, John Barton Payne, Director General of Railroads', for personal injuries sustained by him, as well as for injury and damage to his automobile, caused by tbe alleged negligence of the employees of the defendant in the operation of the defendant’s train.

The record discloses that, on January the 6th, 1920, at the hour of one in the morning, the plaintiff and Dr. Fiery, a dentist, who was at the plaintiff’s house in Hagerstown, upon a professional visit to a member of plaintiff’s family, started in plaintiff’s automobile for the doctor’s home. The plaintiff testified that, while going east on West Antietam Street, he approached the tracks of the Cumberland Valley Eailroad, which cross that street. At that time, he says, a freight train was approaching from the north. It was, however, going so smoothly that he did not hear it, but as soon as he saw it, he put .on his brakes and stopped his automobile. The train was on the west track, the one nearest to the plaintiff, and although the automobile was stopped before it reached the track, it nevertheless. was so near to it that the engine “picked” it up, and carried it down the track for more than three hundred feet to tlie point where the semaphore stood, on the west side of the railroad; while being carried down to the semaphore, the automobile moved smoothly; did not seem to jar very much, and he thought the right wheels were not off the ground; and it ran along as if it were on rails. While he was so carried along, he called as loud as he could to those on the engine to stop, and he heard someone else calling, “Stop, you have picked up an automobile.” Wbeu he heard the man calling, he was down the track half way from the point of the collision to the semaphore and he jumped from the automobile just before the crash came; that he heard the air-brakes thrown on, and the train stopped in about a car’s length; it Was moving about the same rate of speed when the machine struck the semaphore as it was when it picked him up. The automobile was a Packard about eighteen feet long and a very high one, and, while being carried down the track, it was' alongside of the engine, the front part at the cowcatcher. The top of the car was up and tlie back curtains were up, but the other curtains were not on at all. The car was totally wrecked except the motor, and the plaintiff was personally injured.

Upon cross-examination, the plaintiff stated that he was running about ten or twelve miles an hour down Antietam Street; and as soon as he saw the engine he put on his brakes and stopped; he could not tell how far he was away from the track; whether ten, twenty, or thirty feet; he knew nothing about feet; and the defendant’s, counsel was unable to have him. state more definitely the distance he was from the track when he first saw the engine; he stated that he had a klaxon horn on the car, hut he did not blow it while being carried down the track by the engine. The witness further stated that he thought the train at the time of the collision was going at the rate of twenty miles an hour, but in this, as conceded by bis counsel, lie over-estimated its speed, as. it was moving only five or six miles an hour.

D. J. Minnichs, an employee of the Cumberland Valley Railroad Company, testified that at the time of the collision he was “at the watch-box,” which is located on the south side of Antietam Street and a short distance west of the west track of the railroad, and saw the collision, but did not have time to signal before the locomotive struck the automobile; that immediately after it happened, he called out; he did not recall what he said, and then swung his lantern; that he called to the engine-man who was in the; cab of the engine; hut did not know that he saw him. The witness was at the time at the watch-box and the engine was “right by him.” He gave the stop signal with the lantern, but the engine was by him, as he thought, west of Antietam Street, the watch-box being several feet west of the street, that is, it is off the street but right by the pavement; that when he said west, he was speaking in railroad terms, what they called west, which is in fact south. He further testified that he thought he heard somebody call out when the ear was struck; that as the automobile was about to cross the track, it veered to the right; it was close to the pavement and went over the edge of the pavement; and after the collision the automobile was alongside of the locomotive and facing in the same direction. “The engine part of the automobile was alongside; on the pilot of the locomotive, on the right-hand side.” The wheels of the automobile seemed to1 be on the ground. The witness, was- a brakesman and bad been one for four years and was able to judge of the speed of trains; the train was going' about five or six miles an hour at the time of the collision, and when it stopped it was just past the semaphore; a little over the length of the engine and tender; that he did not hear anyone call out after the locomotive passed him; but heard someone when the automobile was first hit. After that he did not hear anyone calling.

Hpon cross-examination, the witness testified the first thing he noticed with reference to the accident was when the automobile came up Antietam Street, real close to him, and he heai'd the brakes which were then applied; the engine was about half way over Antietam Street crossing and this automobile ran out by the watch-box and on the crossing like; the automobile was near the crossing when he first saw it on the rigjitrhand side; he was a little off the street when he was struck, a little to the right of the street, not the whole automobile, but the right side of it would have taken in a little more than the street; the automobile was struck by the pilot of the engine and carried down the track by the engine on the pilot, that he did not notice it running on its own wheels.

W. G. Pídete, fireman upon the engine that collided with plaintiff’s automobile, testified that he was in the cab' of the engine on the left side, and with him on the engine were L. S. Feagan, the engineer,'and T. F. Price; the conductor; the engineer was on the right side, the same side as the automobile, and the conductor on the left side; the train was running five or six miles an hour as it crossed Antietam Street, and the speed was about the same from that point down to the semaphore; that he remembered the emergency brakes being thrown on; it was near the semaphore; the train stopped in about forty feet after the emergency brakes were thrown.

T. F. Price, the conductor, testified that he heard the application of the air brakes, and that the car stopped within about forty feet thereafter, and the train was going about four to six miles an hour.

John Dennis, who was employed by the Cumberland Valley Railroad Company as car inspector, testified tbat, at the time of the collision, he was in the inspector’s building, which is about forty or fifty feet west of the main track and about the same distance from Antielam-Street; that he was looking out and saw the train and automobile strike; tbat he immediately went out and gave the engineer a stop signal with the lantern and hollered: “You hit a car, you have a car1 hanging on you.” He was unable to say whether the engineer was looking and could see the signal. When he signalled, the engine had passed him about the distance of the length of an engine and a half; that he hollered loud enough that he should think the man would hear him, but (for) the noise of the train; that he did not know whether he could hear him or not; the train was making the usual noise that a train makes at- that speed; the engine had gotten hold of the automobile right on the pilot between the front and rear of the automobile; the automobile1 was right between the cylinder and the pilot; it was a clear cold night, the moon was shining; after he gave the signal, he followed the train down towards the semaphore; he was going about the same rate of speed as the train, he walked along at a, pretty fast canter, was not running exactly; that after the air-brakes were thrown on, it went between twenty-five and forty feet.

I "pon cross-examination, he stated that the automobile was between the watch-box and the railroad track when the collision occurred; that he saw them, both coming; the engine was coming and the automobile came up at the same time; the automobile was something like ten feet from the track when he first saw it; one wheel went over the pavement. The automobile “did not go over the rails, it was hooked on the side of the engine.”

V. j\T. Jenkins, who was in the inspector’s shanty, the door of which was at the time open, heard Dennis call out, “You have hit an automobile.” He called very loud.

The plaintiff, when recalled as a witness, stated that the electric street light on Antietam Street, which was shown by the evidence to have been located fourteen feet west from the near rail, was right over the rear of his car when he stopped. He could see the light around him.

Gr. A. Boyer, who was also in the car inspector’s shanty, at the time of the collision, testified that he heard Dennis cry out, “There the train has hit an automobile,” and he called to JVIinnichs to give the signal to stop the train. “Dennis hollered as loud as he could,” he heard him plain; at the time he hollered the engine was right at the watch-box. Both Dennis and JVIinnichs called to them on the engine.

Upon cross-examination the witness stated that Dennis was on the inside when he first called and the door was shut; that he grabbed his lantern, went out and witness followed right behind him; the engine was then about half way down to the semaphore and the automobile was hanging on the cross-sill of the engine. It was hanging on steam cylinder.

Harold Gr. Yan Ripper, a civil engineer, employed by the Pennsylvania Railroad Company, who had made a plat of the scene of the accident, testified that “there are five tracks across Antietam Street; that the nearest side of the watch-box is 9 feet, 11 inches from the nearest rail and the watch-box is 8 feet, 6 inches from the curb line of the pavement,” that “the semaphore is 340 (feet) from the center of Antietam Street,” and to that point the grade of the railroad was ascending for the distance of 100 feet “and from thereon the grade dips down.” He further testified that he made tests to see how far down the trade he could see when standing' in the center of Antietam Street, and found that by standing 60 feet back from the near rail he could see down the track 44 feet; standing 40 feet back from the near rail, 16 feet; standing 20 feet back from the near rail, 310 feet, and 13 feet back from the near rail, 460 feet; that the pole from which the electric arc light hung is 14 feet west from the near rail, and the electric light about the same distance therefrom.

Tlio evidence of the defendant shows that, at the time of the accident, there was an easthonnd freight train on the siding next to the main track three hundred or four hundred feet south of Antietam Street, and a,t the same time there was an engine, which they called the helper or pusher engine, on the main track, the same track on which the engine and train that collided with the automobile was running. This, engine had hacked south through the town ahead of the last named engine, and was, at the time of the collision of the train arid the automobile, about the same distance south of Antietam Street as the easthonnd engine on the siding. Both of these engines were facing north, with their headlights, located at the regular position on the front end at the top of the boiler, and were throwing the rays of their lights upon the southbound train, which collided with the plaintiff’s automobile.

The defendant offered evidence, tending to show that, with these conditions existing, the engineer1 on the southbound engine could not have seen, in crossing Antietam Street, an automobile fastened on the front of his engine, until he got within a short distance of the semaphore. But, upon cross^ examination, one of his witnesses stated that “the headlights of the engines down the track would not prevent the engineer from seeing an automobile about to go on the track, as ho was approaching Antietam Street, if the automobile was right under the arc light.”

Leo Feagan, the engineer on the engine of the southbound train Ho. 1760, the one that collided with the plaintiff’s, automobile, testified that, when he crossed Antietam. Street, he was going four to five miles an hour; the headlight was burning and the conductor was ringing the bell; the fireman and conductor were on the opposite side of the engine from him and “he was on the right-hand box seat watching ahead”; that he did not see Mr. Healey’s automobile as ho approached, or as he crossed Antietam; that the first he knew that there was any trouble was when he was about eight feet of the semaphore, when he thought he heard a noise behind him, and as he turned his head around, he saw something at the side, that is at the front of his engine; that he threw on the emergency brake and stopped in about thirty or forty feet; that he did all he could to stop the train after he saw the automobile or that object on the front of the engine; that he was following a pusher engine through the town; that, as he crossed Antietam Street, the pusher was about five or six hundred feet ahead of him; that there was an eastbound train standing on the siding; that the headlights on both engines were burning bright; that they blinded him as he crossed Antietam Street, and after he crossed Antietam Street and until he got almost to the semaphore; that he did not hear any one signal to him as he was crossing Antietam Street; that just before he stopped he heard a noise which he judged was some one hollering; that there was in the cab of the engine, on the side he was sitting, the noise from the ejector which was working and makes quite a bit of noise, and also the noise from the air-pumps; that there was no unusual noise in the cab, “just about the same as is always made.”

Upon cross-examination he testified that he followed the pusher or helper engine througjh the town at about the same distance behind it as when it passed Antietam Street; before reaching Antietam Street, he had crossed through streets with the pusher engine headlight shining towards him. “Q. What were you doing as you approached Antietam Street? A. Watching ahead. Q,. Did you have your head out of the window ? A. I had half of my head out of the window watching ahead. Q. Did you see anything as you crossed Washington Street? A. Ho; sir. Q. That was clear? A. Yes, sir. Q. Where was the pusher engine at that time? A. It was going ahead of me. Q. Did you keep1 on watching out as you went down Walnut Street?' A. Yes, sir. Q. Did you see anything along there? A. Ho, sir. Q. When you got to Antietam Street, did you see anything there? A. Ho, sir; I did not.”

He further testified that after crossing Antietam Street, he turned his head to the left to shut his eyes from the headlights of the engine facing him. “Q. Hid yon do that before you crossed Antietam Street or while you were crossing Antietam Street? A. While I was crossing Antietam Street. Q. You first said after you got across Antietam Street and now you say while you were crossing Antietam Street you turned your head, which is it ? A. The front end of my engine was across the crossing. Q. I asked you if you took your head in, did you ? A. T moved it in some.” He never saw or heard anything until he got near the semaphore when he heard a noise and saw something out in front of the engine; lie thought it was a buggy top; it was right in front of the cylinder on his side of the engine; lie was then about eight feet from the semaphore; at that time he had passed the engine on the siding, although the pusher engine was ahead of him; lie was then on a curve and the lights were not shining so much in his face as they had been. “Q. How near to where you sat, was this object which you saw out on your train? A. Just about 20 feet.” Witness said he could see nothing when he crossed Antietam Street; the lights blinded him.

T. F. Price, the conductor, and William G. Price, the brakeman, were both recalled, and they testified as to the effect of the lights of the two engines ahead, stating that they prevented them from seeing objects ahead of them; that they blinded them; they also spoke of the noise of the ejector and the pumps.

The declaration, as originally filed, contained four counts and a fifth one was subsequently filed. The first, second and third were withdrawn, leaving only the fourth and fifth. Consequently the verdict was upon the fourth and fifth counts of the declaration.

The case was tried by a jury in the Circuit Court for Washington County and resulted in a verdict and judgment for the plaintiff, and the appeal is from that judgment.

The plaintiff offered three prayers, two of which, the first and third, were granted. The defendant offered twelve prayers. Of these the sixth, eighth, and twelfth were granted. The seventh and ninth were granted as modified hy the court, while the first, second, third, fourth, fifth, tenth and eleventh prayers were rejected. The action of the court in granting the plaintiff’s two prayers and the seventh and ninth prayers of the defendant, as modified, and its rejection of the defendant’s first, second, third, fourth, fifth, tenth and eleventh prayers, constitute the third hill of exceptions. The other two exceptions, the first and second, relate to the action of the court in its rulings upon the evidence.

The negligence with which the defendant ivas charged, in the two counts upon which the Arerdict was rendered, Avas the failure of his agents and employees to stop the engine, carrying with it the plaintiff’s automobile, before it reached the semaphore, and avoiding the collision of the automobile vtitli the semaphore, which caused the injury complained of.

It was not to recover for any injury to the plaintiff or to his automobile, caused by its collision with the defendant’s engine, that this suit was instituted. In fact, as far as the i ecord discloses, there was no injury either to the plaintiff or to his automobile directly caused by its collision with the engine. But this action was brought to recover for the injury and loss sustained hy the plaintiff, resulting from the collision of the automobile Avith the semaphore, which, as alleged hy the plaintiff, the agents and employees of the defendant operating said train, by ordinary care and caution, eouid have avoided after they became, or by the use of ordinary care and caution could have become, aware of the perilous situation of the plaintiff, in which he was placed as a result of the collision of his automobile Avith the defendant’s engine, caused in part at least by the negligence- of the plaintiff.

It will thus be seen that, in the prosecution of this suit, the last clear chance doctrine is invoked. This Court, in Md. Cent. R. Co. v. Newbeur, 62 Md. 398, in defining this principle or doctrine, said, speaking through Chief Judge Alvey, that “where both parties by their negligence directly contribute to the production of the accident, neither has a right to recover of the other for injuries sustained thereby. ■ But there are exceptions to this general rule; and in cases like the present, the exception is, that if the defendant, or those acting for it, had become aware of the perilous situation of the plaintiff, though that peril had been incurred by the negligent or even reckless conduct of the plaintiff, yet the defendant or its agents would be bound to use all reasonable diligence to avoid the accident. But in order that this qualification of or exception to the general rule may be successfully invoked by the plaintiff, lie must show knowledge, on the part of the defendant or its agents, of the peril in which he, the plaintiff, was placed, and that there was time after such knowledge, within which to make the effort to save him from the impending danger.”

Tn the later case of Consolidated Railroad Company v. Armstrong, 92 Md. 554, where this doctrine was again invoked, and in which a prayer was granted by the lower court holding the defendant liable, if he by ordinary care and caution could have averted the accident after he became aware of the plaintiff’s peril, or by ordinary care and caution “ought to have become atoare” of his peril, the objection was made thereto, as in this case, that the insertion of the words “by ordinary care and caution ought to have become atoare” was a modification of the doctrine as laid down in the Neuheur Case; but in discussing that objection, this Court, speaking through Judge Schwuckek, said: “There is no difference in principle between these two forms of instruction to the jury, for it cannot be seriously contended that when the defendant is in a position from which he ought to see or by the exercise of reasonable care could see the plaintiff’s; peril, he may avert his face or close his eyes and not see it and then escape liability for an injury resulting from such conduct on his part. As was said by this Court in Cooney’s Case, 87 Md. 268: ‘The law. will not permit the loss of life or limb or even property to be deliberately and carelessly inflicted, when- it could by reasonable care and caution be averted, merely because the injured person was negligent.’ ”

This is no doubt the established law of this State, applicable to cases like the one before us. Lake Roland El. Rwy. v. McKewen, 80 Md. 593; Balto. Trac. Co. v. Appel, 80 Md. 603; Consol. Rwy. Co. v. Rifcowitz, 89 Md. 338; United Rwys. v. Kolken, 114 Md. 160; Silver v. Phila., B. & W. R. Co., 120 Md. 65; and other cases.

The law as above stated was contained in the plaintiff’s first prayer and the defendant’s seventh and ninth prayers, as modified; and it appears to have been recognized by the defendant in his eighth prayer, which was granted by the court as offered.

The plaintiff’s third prayer correctly states the measure of damages. The defendant’s tenth prayer, which was rejected, was properly rejected, as it was at variance with the principle stated. The defendant’s eleventh prayer was likewise properly rejected.

The second prayer of the defendant, which asks that a verdict be directed for him, because of the alleged contributory negligence of the plaintiff, is based, as stated by the defendant in his brief, upon the fact that the plaintiff did not blow the horn of the automobile after it became attached to the engine. The court, upon the facts shown in this case, was certainly not warranted in holding as a matter of law that the plaintiff was guilty of contributory negligence in not blowing the horn of his automobile at such time.

This brings us to the consideration of the defendant’s first, third, fourth and fifth prayers, each of which asks the court to direct a verdict for the defendant because of a want of legally sufficient evidence entitling the plaintiff to recover.

The plaintiff at the time of the accident was on one of the public streets of Hagerstown, where he had a right to be, subjeet to the duty imposed upon him of exercising due care and caution in crossing the defendant’s tracks thereon, and to see that his way was clear before attempting to cross or to approach so near thereto as to render his position unsafe in respect to passing trains; and the defendant had the right to cross said street with his trains, subject to the duty imposed upon those operating his trains of exercising ordinary care and caution in relation to those traveling on said public highway.

The evidence discloses that there was an arc light brightly burning on the south side of West Antietam Street, only a few feet from the track of the railroad of the defendant, and that when the automobile of the plaintiff stopped, the rear end of it was immediately under this light. A witness of the defendant testified that the lights upon the two engines in front of engine Eo. 1760 had the effect of blinding Eeagan, the engineer thereon, after he got behind the rays of this are light, hut “until he came to this are light, he could see right at the are light, that the headlights of the engines down the track would not prevent the engineer from seeing an automobile about to go on the track, as he was approaching Antietam Street, if the automobile was right under the arc light.”

This and other evidence in the case showing that those operating the train were both called and signalled to by persons near to the engine warning them of the danger and the perilous position of the plaintiff caused by the collision of the automobile with the engine, was sufficient to go to the jury, to be considered by it as tending to show that those operating the train, by ordinary care and caution, could have avoided the collision of the automobile, not with the engine, but with tbe semaphore, which caused the loss; and injury sued for1.

It may have been that, by the exercise of ordinary care and caution, the engineer, or those operating the southbound train, could not have avoided its collision with the automobile, but whether this be so or not, it was nevertheless the duty of those operating the train to have used ordinary care and caution in crossing said street, and in so doing, as stated at least by one witness, a witness produced by tbe defendant, they could bave seen tbe automobile of tbe plaintiff under tbe arc light near tbe track of tbe defendant, and seeing it there, though not able to avoid colliding with it, they would bave known of tbe perilous situation of those in the automobile which was upon or dangerously near the track, and their attention being attracted thereto, the engineer would not, as he admits, while still crossing the street, have ceased looking ahead of him, but would naturally have continued to give his attention to the automobile, and in all probability would bave seen it attached to his engine in time to have avoided the accident resulting in the injury complained of.

/ Evidence as to whether those operating the train used proper care and caution before and while crossing the street' is admissible in this case, not to determine the liability of tbe defendant for the injury, if any, caused by tbe collision of the train with his automobile, for such question is not involved in this suit, hut because such evidence aids in the determination of the further question whether the employees of the defendant, in the operation of his train, by proper care and caution could have avoided the collision of the automobile with the semaphore after they knew, or by reasonable care and caution could bave known, of tbe perilous situation of tbe plaintiff caused by the collision of bis automobile with tbe defendant’s engine, and that such evidence is admissible for such purpose, we think there can he no doubt.

The remaining two exceptions relating to evidence were, we think, properly ruled upon by the learned court below, and as we find no error in the court’s rulings upon any of the questions presented by this appeal, tbe judgment appealed from will be affirmed.

.Judgment affirmed, with costs.  