Union R. Co. v. State

• Decision Date: 18 March 1890
• Citation: 72 Md. 153,19 A. 449
• Parties: UNION R. CO. et al. v. STATE, to the Use of STEEYER et al.
• Court: Maryland Court of Appeals

19 A. 449

72 Md. 153

UNION R. CO. et al.

v. STATE, to the Use of STEEYER et al.

Court of Appeals of Maryland.

March 18, 1890.

Appeal from superior court of Baltimore city.

Action by the state, to the use of Annie Steever and others, against the Union Railroad Company of Baltimore and the Philadelphia, Wilmington & Baltimore Railroad Company, for the alleged negligent killing of Daniel Steever. There was a verdict for plaintiff, and defendants appeal.

Argued before ALVEY, C. J., and ROBINSON, BRYAN, MCSHERRY, FOWLER, and IRVING, JJ.

Bernard Carter and John J. Donaldson, for appellants. T. W. Blakistone and George Blakistone, for appellees.

IRVING, J. This case was before the court in 70 Md. 69, 18 Atl. Rep. 1032, on the appeal of the present appellee, who there complained that the case had been erroneously taken from the jury. The case having been remanded for new trial, the verdict was in favor of the plaintiff, and the defendants have appealed, because the court below refused appellants' third and fourth prayers. The facts are so fully stated in the former appeal they need not be recapitulated here. The third prayer of the defendants, which appellants contend ought to have been granted, is as follows, viz.: "If the jury shall believe from the evidence that the bell of the engine was ringing from the time it left Canton Junction until the accident happened, and that there was a light upon the lid of the tender in the position described by the defendants' witnesses during that time, and that from a point on the turnpike, about 650 feet east of the crossing, all the way to the crossing, one driving the turnpike could hear the bell and see the light, then the plaintiff is not entitled to recover, and the verdict of the jury must be for the defendants." The appellees object to this instruction, for the reason that it fails to require the jury to find that the deceased did see and hear, and yet disregarded, these signals of warning. Appellees' counsel further insist that if, in the$$$

abstract, the prayer is right, still there was no error in its rejection, because the first and second prayers of the appellants, which were granted, covered the whole case, and gave them the benefit of all deductions they could get from this prayer. Repeated decisions in this state have settled the law that in approaching a railroad crossing it is the imperative duty of persons designing and desiring to cross a railroad track at a crossing to look and listen for a possibly approaching train. Mc Girl's Case, 61 Md. 121; Stansbury's Case, 54 Md. 656; Bacon's Case, 58 Md. 490; Neubeur's Case, 62 Md. 399; Hogeland's Case, 66 Md. 149, 7 Atl. Rep. 105; Maugan's Case, 61 Md. 61. This prayer puts it to the jury to find whether the bell of the engine was ringing all the while it was approaching the crossing, and whether there was a light on the tender of the locomotive, and whether the bell could be heard and the light could be seen by one driving on the turnpike; and then instructs the jury that if there was such visible light, and such audible ringing of the bell, then the plaintiff could not recover. It is clear if the deceased did hear that bell, or did see the approaching light of the train, and did disregard these signals of warning, he recklessly imperiled his life, and no recovery should be had. In Neubeur's Case, 62 Md. 399, the law is thus stated: "They should, in all cases, before proceeding to cross, carefully look and listen, to ascertain whether a train is approaching; * * * and, if the experiment is made without such precaution, the party acts at his peril, * * * and must be held to have so far contributed to his own misfortune as to preclude him the right to recover against the railroad company." "We have seen that it was his duty to look and listen; and, in the absence of proof whether he did observe this duty, we must presume...