Cumberland & P. R. Co. v. State
| Decision Date | 13 November 1890 |
| Citation | 20 A. 785,78 Md. 74 |
| Court | Maryland Court of Appeals |
| Parties | CUMBERLAND & P. R. Co. v. STATE, to Use Of MILLSLAOLE. |
Appeal from circuit court, Allegany county.
Argued before ALVEY, C. J., and MILLER, BRYAN, McSHERRY, FOWLER, BRISCOE, and IRVING, JJ.
H. Kyd Douglas and R. H. Gordon, for appellant. William E. Walsh, Ferd. Williams, and Alexander Neill, for appellee.
The equitable plaintiff, the appellee in this court, sued the appellant for killing her son, a boy of seven years old, through the negligence of its employes in running the train which inflicted the injuries. Appellant's engine Mo. 4 was coming east, into the city of Cumberland, drawing a train of five or six freight-cars including one box-car. The tender was in front of the engine, which was running backwards pulling the train. According to the plaintiff's witnesses, the tender was square, five feet high from the track, without any lookout upon it, and was some obstruction to the fireman and engineer in seeing the track in front of it. An ordinance of the city of Cumberland prohibited trains, passing through the city, going faster than six miles per hour. Plaintiff's witnesses testified that this train was running at a speed of from seven to nine miles per hour, which was a violation of the ordinance. The rules of the railroad company required the whistle to be sounded for stations and crossings, and, after the whistle had sounded, the bell was required to be rung until the station or crossings were passed, and the bell is to be sounded continually while passing through the limits of incorporated cities; but the use of the whistle, when in close proximity to streets or roads where houses are used, was, by the rules of the company, to be avoided as much as possible. Evidence was offered by the appellee, tending to prove a violation of the rules of the company in omitting to sound the whistle and ring the bell. There were two tracks, one for the east-bound train, and one for the west-bound train; and when engine No. 4 was coming east, between Valley street and Knox street, another train came down on the other track, going westward at the rate of 20 or 25 miles an hour. Engine No. 4 had passed the point where the accident occurred, when a witness of the plaintiff saw the train going westward stop, and saw the brakeman go back and pick up a boy from the track over which engine No. 4 had passed, and carry him to the watch-box, where the witness joined "the party." The boy was found lying with his body outside the east-bound track, and his shoe and foot, which was cut off, was inside the rail which was farthest from the west-bound track. The witness heard somebody scream shortly after the engine No. 4 and train had passed. He was alive when found; but died during the night of the same day. He was found between two streets, but near no crossing. At or near the spot where he was killed, there was a coal-yard, to which the mother of the boy testified she had sent him in the afternoon to order some coal. She testified that, in going and returning from the coal-yard, it was not necessary to cross the track, or go upon it. The plaintiff's witnesses had not seen the boy till he was picked up after the injury. One foot was cut off, and the other was badly crushed, and no other injuries are mentioned as sustained. The appellees rested their case, and the appellant, before offering any testimony on its part, offered a prayer "that there is no evidence in this case from which the jury can find that the death of John F. Millsagle was caused by the negligence of the defendant's employes, and under the pleadings and evidence in the case the plaintiff is not entitled to recover." This instruction was refused, and is the subject of the first exception.
The court having refused at this point to take the case from the jury, the appellant offered evidence tending to show that the train was not going at a speed beyond the six miles allowed by the city ordinance; and that the bell was rung, and the whistle was blown; and that there was no one on the track in front of the tender and engine, and no one near it; and that witnesses were looking and could see. A witness also testified that she saw the boy 15 minutes before the accident attempting to get on a freight train moving westward. He was taking hold of the boxcar next to the tender. She was very near him. She next saw him when he was being taken home after the accident. When the case was closed, various instructions were asked by the...
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