At the trial of this case two exceptions were taken by the defendant to the admission of evidence, but these were abandoned at the argument in this Court, and the only remaining exception is to the ruling on the prayers.
On April 17th, 1901, the plaintiff was driving a grocery wagon drawn by a quiet horse, on Bayard street in the city of Baltimore, at a point where the tracks of the Baltimore and Ohio R.R. Co. cross said street at grade, and where safety gates are maintained by the Railroad Co. as required by sec. 791 of the city charter. There are four tracks at that point, and the plaintiff's view of trains approaching from the west was obstructed for about six hundred feet from the crossing by a row of coal cars standing upon one of these tracks. He testified that as he drew near the crossing he saw the safety gates were open, but he did not see the watchman; that he looked four times both ways, and saw no train or engine approaching, nor any smoke or other sign of an engine; that he listened and heard no bell nor whistle nor any sound of any approaching train, and kept on till he was on the crossing; that while crossing the second track, he was struck by an express train coming from Washington which he could not see or hear until just before it struck him, destroying his wagon and injuring him, for which the jury awarded him $1,800.
The plaintiff offered four prayers all of which were granted, *Page 89 and the defendant offered seven, of which the second, third and fourth were granted, and all the others were refused. The plaintiff's first and second prayers have been repeatedly sanctioned by this Court where the case is allowed to go to the jury, and need not be again considered. But it was very earnestly argued that there was error in granting the plaintiff's one and a-half, and fourth prayers, and refusing the defendant's first, fifth, sixth and seventh prayers.
By the plaintiff's first prayer, and by defendant's second, third and fourth prayers, the finding of the two essential elements of recovery in any case of this character, namely, the negligence of defendant directly causing the injuries sustained, and the absence of negligence on the part of the plaintiff directly contributing thereto, was fully and fairly submitted to the jury.
The plaintiff's one and a-half prayer told the jury that if they found the crossing in question was a grade crossing, then under the section of the charter offered in evidence, it was defendant's duty to maintain a safety gate at that point and to keep the same closed on the approach of every train or locomotive until the same has fully passed, and if they found said gate was maintained, but was open and not closed on April 17th, 1901, on the approach of a train and locomotive, and that plaintiff was struck and injured thereby while crossing said track, and that if said gate had been closed on the approach, and during the passage of said train, the accident could have been avoided, then there was a want of ordinary care on the part of the defendant as mentioned in the plaintiff's first prayer.
The defendant objects to this prayer, first, that it excludes the question of contributory negligence, and second, that it ignores the causal connection between the violation of sec. 791 and the happening of the accident. The first objection might be valid if the prayer went to the right of recovery, but it does not so conclude. It merely declares that certain facts, if found by the jury, constitute want of ordinary care, and identifies that want of ordinary care, as the same which must have caused the injury complained of, without any contribution *Page 90 thereto from any want of ordinary care on the part of the plaintiff. It cannot be questioned that the violation of such a requirement is negligence, though not causing injury; and although the jury might find all the facts under that instruction, which the Court declared would establish want of ordinary care on the part of the defendant, yet they could not either under that instruction alone, or in connection with the first prayer, to which it referred, find for the plaintiff, unless they also found he was not guilty of contributory negligence. Nor does it ignore the causal connection between the violation of sec. 791 and the happening of the accident. The criticism to that effect, is a mere verbal criticism upon which grammarians might differ, but to practical men, not concerned about nice discrimination in words, this expression could not be understood otherwise than as meaning that the accident would not have happened, and would not suggest any question of supervening negligence as argued by defendant's counsel. This prayer is a nearly literal reproduction of the plaintiff's second prayer inMcDonnell's case, 43 Md. 537, and in approving it JUDGE GRASON said: "The defendant was certainly guilty of negligence in so running its cars, if the jury believe from the evidence that the accident could have been avoided if the car had not been running at a greater speed than was allowable under the ordinance." And these words were used in reply to the exact argument made by counsel in the present case as to supervening negligence. We find no error in granting this prayer, which we think is quite within the ruling in Stebbin's case, 62 Md. 517.
The plaintiff's fourth prayer, as to the burden of proving contributory negligence, is the same approved in Hogeland'scase, 66 Md. 162, and there said to have been repeatedly sanctioned. A late and interesting consideration of this question is found in Tucker v. State, use of Johnson, 89 Md. 471, where death resulted from a pistol shot fired in alleged necessary defense of defendant's servant. The Court said on page 480: "It has been held over and over again in this State that if a suit is brought under this statute for the negligence of the defendant, *Page 91 the burden is on the plaintiff to prove the negligence, yet if the plaintiff's testimony makes out a prima facie case of negligence, and does not disclose want of care on the part of the deceased, the burden is on the defendant to establish contributory negligence, if that is relied on. Frech's case,39 Md. 574; Hauer's case, 60 Md. 462; Steever's case, 70 Md. 75; and many others that might be cited. So, although by the terms of the statute, the plaintiff in such cases can only recover by proving that the death of the person was caused by the negligence or default of the defendant, the defendant has the burden cast on him to prove that the proximate cause of the injury was the negligence of the deceased, and that too, notwithstanding the plaintiff is required to prove, as part of his case, that the negligence of the deceased did not directly contribute to the injury. The latter may be satisfied by the presumption of due care and the known and ordinary disposition of men to guard themselves against danger, when the plaintiff's testimony as to the accident does not show affirmatively that the deceased did directly contribute to the injury." In opposition to this clear and logical statement of the law upon this point, the defendant's counsel in his brief says: "It is the duty of the plaintiff to show how the accident happened, as proof that it was caused by the negligence of defendant. In doing this he must necessarily negative the other possible explanations. The theory of pure accident, or the theory of plaintiff's negligence, original or contributory, are open as possible causes. He must show negligence of defendant as direct cause, and in doing so must negative negligence of the plaintiff."
To sustain this argument he cites this passage from Balt.Traction Co. v. Helms, 84 Md. 525: "By the well-settled law applicable to the class of cases to which this belongs, it is not enough for the plaintiff to prove the negligence of the defendant, and the injury which followed, but he is bound also to establish by satisfactory proof, before he can recover, that he was himself free from negligence and exercised ordinary care to avoid the consequences of defendant's negligence." However *Page 92 that language might have been regarded, if it stood apart from any qualifying language, and if that case had been the first in this Court dealing with this rule, it is impossible to suppose that the learned and careful Judge who delivered that opinion, intended to overrule, without even mentioning, the various cases in which it had been held that the burden of proof in this regard is on the defendant; and it is perfectly apparent from the very next sentence in that opinion, that the defendant's counsel in this case has misconceived the meaning of the language cited, for the Court goes on to say, "The right to recover depends upon two distinct propositions of fact; first, the negligence of defendant, and secondly, the exercise of due and ordinary care by the plaintiff, and if he fail to prove negligence on the part of the defendant, or if it appears from his own evidence that hewas guilty of negligence directly contributing to the injury, he cannot recover." In the face of all the authorities in this State, we cannot perceive how the correctness of this prayer can be seriously questioned.
The defendant's first prayer is an attempt to impose by ingenious indirection upon the plaintiff, the burden of proving contributory negligence, and is wholly irreconcilable with plaintiff's fourth prayer. The first three lines of defendant's first prayer assert an admitted proposition, that the negligence of defendant causing the injury must be a legitimate deduction or inference from established facts, and not a mere speculation or conjecture, which is never the equivalent of proof. But the prayer then proceeds to assert that the plaintiff must convince the jury by evidence that it is more likely that there was, than that there was not, contributory negligence on plaintiff's part; thus practically reversing the established rule as to the burden of proof upon this point, and permitting contributory negligence to be founded upon speculation or conjecture, while denying resort to this means for establishing defendant's negligence. This is not only unreasonable and without authority, but in direct disregard of Geiss' case, 31 Md. 367; where a prayer in a case of this character was disapproved, because it required "affirmative proof, as a condition to the right to recover, *Page 93 that the deceased did not by his own neglect or want of care contribute to the accident." These objections are fatal to this prayer.
The defendant's fifth prayer which was refused, asked that the jury be instructed that the fact that the safety gates were open and the gateman absent, did not in itself justify the plaintiff in going upon the track, but that it was his duty to stop, look, and listen before going on the track. As it is a conceded fact that the plaintiff did not stop, though he did look and listen, this prayer, if granted would, in effect, have taken the case from the jury. This is the first case in this Court in which it has been sought to apply the rule of stop, look and listen, arbitrarily, to a case where safety gates required by law to be kept closed on the approach of a train were open as the traveller approached the crossing, and we have given it careful consideration. It may be conceded unhesitatingly that the mere fact that such gates are open cannot, alone, and in all cases, justify a traveler in going upon the track at the crossing, and that there are cases in which it may be the traveller's duty to make independent observation by stopping, as well as by looking and listening, before doing so. The case of Pa. R.R. v.Pfeulb, 60 N.J. Law, 278, is such a case. There the proof was that though the gates were up as plaintiff approached, an east bound train was then passing, and he waited until it passed, and then went upon the track and was struck by a train coming in the opposite direction, which he could not have failed to see if he had looked; and the Court properly said: "He knew the gateman had neglected his duty and that he could not rely with confidence upon the fact that the gates were up." So also, if one seeing the gates up, but also seeing an approaching train near at hand, should attempt to cross before it, merely because the gates were open, or because he chose to risk the experiment, the open gate could not relieve him of the consequences of his own want of due and ordinary care.
None of the cases in this Court in which the failure to stop, look, and listen before crossing a railroad track has been declared *Page 94 negligence per se, from Hogeland's case in 66 Md. 149, toRoming's case, 96 Md. 67, have involved the question of safety gates, and none of them have announced any principle which would either require or, in our opinion, justify the application of the rule invoked to such a case as the present. In Roming's case the B. O.R.R. Co. voluntarily maintained a gate at the crossing in question, but it was operated only in the day time and did not enter into the consideration of that case.
The rule has been so applied in Pennsylvania but the great weight of authority in England and America is the other way.
In North Eastern R.W. v. Wanless, 7 Eng. and Irish Appeals, 12, LORD CAIRNS held where it was the duty of the railway to keep the gates closed when any train is approaching, that the fact that they were open "amounted to a statement and notice to the public that the line at that time was safe for crossing, and was evidence of negligence to go to the jury;" and the same was held in Stapley v. London and Brigton Ry. Co., L.R. 1 Exch. 21; and in Lunt v. London and South Western Ry. Co., L.R. 1 Q.B. 277. In the last case, LORD BLACKBURN observed: "It could make no difference whether the gate keeper expresses that the road is safe, by opening the gate, or by words or gestures." This is the view held in the following cases in this country: Grand TrunkRailway v. Ives, 144 U.S. 408; Dolan v. Del. and HudsonCanal Co., 71 N.Y. 288; Glushing v. Sharp, 96 N.Y. 667;Palmer v. N.Y. Cent. R.R., 112 N.Y. 234; Chicago and RockIsland R. Co. v. Clough, 134 Ill. 586; Rhode v. Chicago andNorth Western R.R., 86 Wis. 312; Evans v. Lake Shore andMich. Sou. R.R., 88 Mich. 442; Wilson v. N.Y. and N.H.R.R., 29 At. Rep. 258, and in many other cases which might be cited. InGlushing v. Sharp, supra, the Court said: "The open gate was a substantial assurance of safety, just as significant as if the gateman had beckoned or invited him to come on, and that anordinarily prudent man would not be influenced by it, is against all human experience." In Dolan v. Del. Hudson Canal Co.,supra, it was held that the negligence of a flagman to give *Page 95 warning and properly to discharge his duty, or in absenting himself from his post, even where no law required the keeping of a flagman, is imputable to the company, and that where plaintiff's evidence tended to show that he looked and listened for the usual signals and evidences of danger, and neither saw nor heard any, and where obstructions by cars standing on the tracks prevented his seeing and hearing the approaching train, that it could not be held as a matter of law that it was the plaintiff's duty to have stopped his horses and gone forward to see if a train was approaching. CHIEF JUSTICE CHURCH said, "The vigilance which the evidence tended to show that the plaintiff exercised is all that has been required as matter of law. There may be cases where a higher degree of vigilance might be regarded as proper, but those are exceptional cases which must be left to the jury on the facts."
In Wilson v. N.Y. N.H.R.R., 29 At. Rep. 258 (R.I.) CHIEF JUSTICE MATTERSON said, "The word, invitation, though sometimes used in the opinions of learned Courts, evidently was designed to mean only that the leaving open of the gates amounted to an implied assurance that the track might be safely crossed. Thus understood, the authorities are numerous (the only cases to the contrary that have come to our attention being cases in Pennsylvania) that open gates, or the absence of the usual signals of an approaching train or engine are implied assurances that no train or engine is approaching the crossing with intent to cross the street, upon which travellers on the street have a right to rely, and that if a traveller on the street be injured while crossing the railroad in such circumstances, the question whether he was guilty of contributory negligence is for the jury."
In Evans v. Lake Shore R.R., supra, the Court said: "The public have a right to presume in the absence of knowledge to the contrary, that the gatemen are properly discharging their duty, and are not negligent in acting upon the presumption that they are not exposed to a danger which could only arise from a disregard of such duties." In Palmer v. N.Y. Cent. R.R.,112 N.Y. 241, the Court said: "When, therefore, *Page 96 he moves on upon the track under an assurance of safety from those owning it, and from their servants, whose special duty it is to keep their attention fixed upon it, and who have within their power the means of avoiding the infliction of injury, and whose business it is to use them so as to prevent danger, it is for the jury to say whether the traveler exercised that ordinary care and prudence which under the circumstances it would be natural to expect."
Even in Pennsylvania, where, as we have seen the traveller is held to stricter account than in any other State, in the recent case of Roberts v. Del. and Hudson Canal Co., 177 Pa. St. 190, the following instruction was held correct. "Safety gates which should be closed in case of danger, if standing open, are an invitation to the traveler on the highway to cross, and while this fact does not relieve him from the duty of exercising care, it is a fact for the consideration of the jury in determining whether he exercised care according to the circumstances." We have thus, perhaps at undue length, endeavored to extract from some of the leading cases, the views of the Courts upon the point under consideration, and while we have not been furnished with, and have not found, any Maryland case involving the exact question, the principle deduced from the cases we have cited, seems to be plainly recognized in Phil. Wilm. Balt. R.R. v.State, use of Gunther, 66 Md. 510, in which JUDGE ALVEY said: "If the equitable plaintiff was really misled by any such misconduct of the flagman as was calculated to mislead a rational person, in the exercise of reasonable care, under all the circumstances of the case, and that by reason of the fact that he was so misled, the accident occurred, then the right of action would exist, and the plaintiff would be entitled to recover."
For the reasons that we have stated we think this prayer was properly rejected.
The defendant's sixth and seventh prayers both ignore all question of the assurance of safety implied in the open gates which was a fact necessary to be considered by the jury; but apart from this objection they are defective in declaring that *Page 97 if the plaintiff went on the track without knowing whether a train was coming or not, and the accident happened for that reason, then the plaintiff could not recover.
He knew the gates were required to be closed when a train or engine was approaching, and if he knew a train or engine was approaching, he knew the open gates were not then an assurance of safety, and under such circumstances if he were injured, his own negligence would defeat his recovery. On the other hand, if he in fact actually knew a train or engine was not approaching, there would be no source of danger, and no occasion for vigilance or caution. These prayers substitute, as the test of recovery, actual knowledge that no train or engine was approaching, for the due care and caution required by the law in endeavoring to ascertain this fact. The right of recovery does not depend upon the accuracy of the plaintiff's information as to the approach of the train, but upon the measure of care and caution exercised to obtain accurate information, under all the circumstances of the case.
We think the whole law of the case was fully covered by the granted prayers and the judgment will be affirmed.
Judgment affirmed with costs above and below.
(Decided April 1st, 1903.)