The plaintiff was injured on the 16th of November, 1898, under the following circumstances: He was driving two horses attached to a wagon which was loaded with coal. As he passed under the bridge over which the track of the Baltimore and Ohio Railroad crosses the Susquehanna river his horses became frightened, ran away and he was badly injured. At the point where the accident happened a county road passes under the bridge — the latter being elevated about eighty feet above the former. While crossing the bridge and when passing above the county road the whistle of one of the engines of defendant going east, and drawing a passenger train, was sounded twice for the purpose of informing the signal-men at the tower on the east side of the bridge that the signal displayed at the tower had been seen by the engineer. According to the testimony of the plaintiff it was the sounding of the whistle which caused the accident and produced the injury, damages for which he seeks in this suit to recover.
At the close of the plaintiff's testimony the defendant *Page 351 asked the Court to take the case from the jury, but this request was refused, the defendant excepted, and offered testimony in its defense. By proceeding with the case after its first prayer was refused, the defendant must be held to have waived its exception to that action of the Court. But the same questions, namely, whether, first, there is any legally sufficient evidence in the case to prove negligence on the part of the defendant, and secondly, if there was such negligence on the part of the defendant, whether the plaintiff was guilty of such contributory negligence directly contributing to the injury as will prevent a recovery, are again presented by the defendant's tenth and eleventh prayers which were refused. The ninth prayer of the defendant raises the question as to whether, under the circumstances of this case, as set forth in that prayer, the plaintiff was not bound "to stop, look and listen." The defendants excepted to the refusal of its ninth, tenth and eleventh prayers, and to the granting of the plaintiff's two prayers. The verdict and judgment being in favor of the plaintiff, the defendant has appealed.
The only questions, therefore, before us on this record are the two principal questions which are generally involved in actions to recover damages for injury caused by the negligent act of another, that is, first, was the injury caused entirely by the negligence of the defendant, or, secondly, did the plaintiff by his own negligence, directly contribute to his own misfortune?
We will consider these two questions in the light of the testimony disclosed by the record, and the conclusion at which we arrive will enable us briefly to dispose of the legal proposition involved in the prayers of the plaintiff which were granted, and the three prayers of the defendant which were refused.
By the testimony of the plaintiff it appears that the negligence of the defendant, which he relies on, are first, the failure to blow the whistle before reaching the crossing, and the blowing of the whistle while the train was in the act of *Page 352 passing over the bridge immediately above the crossing. The only testimony we have that there was a failure to give the signal of the approach of the train is the bare statement of the plaintiff, that although he listened, he did not hear it. In view of the testimony offered by the defendant showing, as we think, beyond doubt, that the approach signal was in fact given, this negative testimony of the plaintiff is, to say the least, very unsatisfactory. But assuming, without so deciding, that such testimony as the plaintiff gave would, in a different case, be legally sufficient evidence to be submitted to the jury, we think it is clear it has no application whatever to the case at bar, because it is conceded by his counsel and the plaintiff's evidence is clear to the effect, that the sole cause of the injury was not the failure to give the signal of the approach of the train, but the blowing of the two blasts over the heads of the horses. "The sole cause of the accident," argues counsel, "was the careless act of the engineer of the train giving two sharp blasts of the whistle directly over the highway. But for that act there would have been no accident." The plaintiff testified that "the horse was not paying any attention to the cars or the noise until he blew the whistle. As soon as he blew the whistle the horse jumped." And again he says it took the second whistle to make the horse run, and that he did not think he would have run away but for the second whistle.
We will therefore pass to the consideration of the second act of negligence relied on by the plaintiff. His testimony is clear and affirmative, as we have seen, to the fact that the blowing of the two blasts over the highway was the cause of the accident. This is not the case of a passenger seeking to recover damages for negligence of the railroad company, and therefore no presumption of negligence arises from the simple happening of the accident — and the onus is upon the plaintiff to show that the defendant did not use ordinary care. Pumphrey's case,72 Md. 82; Bahr's case, 28 Md. 647. It is also incumbent on the plaintiff to *Page 353 prove circumstances from which it may fairly be inferred that there is a reasonable probability that the accident resulted from want of some precaution which the defendant might and ought to have resorted to, and to show with reasonable certainty what particular precautions should have been taken to avoid the injury. Stebbing's case, 62 Md. 504. But when the plaintiff offered proof of the blowing of the two blasts over the highway on which he was traveling, and when at the same time it appears from the evidence offered by the defendant, that while the sounding of the whistle on the bridge was a necessary and proper regulation, yet that it could have been and usually was sounded after or before passing the highway, there was sufficient evidence to go to the jury that the act complained of as an act of negligence was such; Hogeland's case, 66 Md. 162; Rupard v. Railroad, 88 Kentucky, 280; Barnett's case, 59 Pa. St. 259; and that it could have been avoided by the use of ordinary care on the part of the defendant. It is true, as shown by the evidence, that it is impossible for the engineer at this point at the same time to watch for the signal at the tower and look out for travelers on the highway, but for this very reason the defendant should mark the point on the bridge where it crosses the highway, and instruct its agents not to blow the whistle at that point. And thus that which, in this case, is alleged to be the sole cause of injury, will be avoided.
This brings us to the controlling question in the case: Was the plaintiff guilty of such contributory negligence as will prevent recovery? We are clearly of opinion that he was. In the first place it may be remarked that the crossing in question is not the ordinary grade crossing, but that it is one of unusual elevation overhead, the bridge over which the defendant's trains pass being from 70 to 90 feet high. At the point in question the train was elevated about 80 feet above the road, and the plaintiff testified that from any point along the road on which he was travelling, until within a few hundred yards of the bridge, the trains *Page 354 going, as this train was, from Baltimore to Philadelphia could be seen nearly all the way across. But surely it would need no evidence to establish this important fact. It must be, from the great elevation of the bridge that it and the trains passing over it are visible for a great distance. It also appears from the evidence that the noise produced by the movement of trains over the bridge was much greater than that of a similar train on the ground. All the witnesses testify that when going north, on the road towards the bridge, a considerable portion of the latter was plainly visible, except when the view was obscured by two buildings — a factory and an ice-house. Now, when it is remembered that the whole time occupied by a passenger train in crossing the bridge is three minutes, it would seem to be clear that it was the duty of the plaintiff either to look from a point where he could see, or to stop when in a place of safety and listen. Hogeland's case, 66 Md. 161; Neubeur's case,62 Md. 399; Price's case, 87 Md. 188. But he did neither in such a manner as to entitle him to recover. He says he looked, but did not see the train. But this is not sufficient. It will not do to say that he looked and did not see, and listened and did not hear, when the facts of the case show that if he had looked or listened with the requisite care and caution he must have seen or heard it. For a distance of about 500 feet, that is, from the factory to the north end of the ice-house, the train, by his own testimony, could have been seen or heard by the exercise of ordinary care and caution nearly all the way across the bridge — a mile — and if the plaintiff failed to do what the law requires of him, he must suffer the consequences of his own rashness.Price's case, 87 Md. 183. In addition to this failure to see or hear the train approaching, he left the usual and proper position which he should have occupied while driving his team, and walked until the train was over his head, when he took hold of one of the horses, leaving the other without control. If he had remained upon the seat of the wagon he could have not only used the lines for *Page 355 the purpose of preventing the horses from running away, but the brake, if in working order, would also have been within his reach. The plaintiff testified that he could not tell whether injury would have happened if he had remained in the wagon, but that he could have had better control there with the lines in his hands. But it was argued in his behalf that "he was not bound to anticipate and guard against a possible negligent act of the defendants' servants," and that "he had no reason to expect they would sound the whistle directly over the public road." As we have said, this was undoubtedly an act of negligence on the part of the defendant, but the plaintiff was not thereby justified in driving into a place of danger, when, by the proper and reasonable use of his eyes or ears, he could have remained in a place of safety. We think the usual rule applicable to grade crossings should be applied to crossings whether under or over railroads. No greater degree of care should be required of one party than the other, (Owing's case, 65 Md. 502), and where the crossing is dangerous the duty of care and caution is mutual and reciprocal. Hogeland's case, supra; Rupard v. R.R. Co.,88 Ky. 280; Barnett's case, 59 Pa. St. 268. And so in regard to the rule as to stopping to listen. It should be applied to all crossings where the view is obstructed, or when, for any other reason, it is evident that the traveller can hear better and avoid danger by stopping to listen in a place of safety. InRupard's case, supra, the public road crossed the railroad by a bridge about 20 feet high. While the plaintiff was passing over the bridge her horse became frightened at the noise made by the train going under the bridge, and she was injured. It was held it was negligence of the defendant to fail to give notice of the approach of the train, but that the case was properly taken from the jury because of contributory negligence of the plaintiff. "She was familiar with the crossing and its surroundings. The track in the direction that the train was coming was clear of obstruction several hundred yards, and she could have seen the approaching *Page 356 train that distance had she looked." In the case at bar the plaintiff testifies that he did look and listen, but neither saw nor heard it. As we have said, he was bound to see or hear it under the circumstances in evidence. See also Barnett's case,supra, in which the necessity of giving notice of approach of train where public road crosses above the railroad.
Reversed without a new trial.
(Decided June 14th, 1900.)