West Virginia Cent. & P. Ry. Co. v. State

• Decision Date: 31 March 1903
• Parties: WEST VIRGINIA CENT. & P.RY. CO. v. STATE, to Use of FULLER.
• Court: Maryland Court of Appeals

54 A. 669

96 Md. 652

WEST VIRGINIA CENT. & P.RY. CO. v. STATE, to Use of FULLER.

Court of Appeals of Maryland

March 31, 1903

Appeal from Circuit Court, Allegany County; Edward Stake, Judge.

Action by the state of Maryland, for the use of Ida F. Fuller against the West Virginia Central & Pittsburg Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The action was brought to recover for the negligent killing of Melville W. Fuller, a boy 14 years old. The following are the prayers referred to in the opinion of the court.

Plaintiff's prayer: "If the jury find from the evidence that on or about the 8th day of July, 1901, Melville Fuller, under the age of 21 years, was killed by the cars of the defendant while operated by its agents on its road, and that the equitable plaintiff herein is related to him in the manner as set forth in the pleadings, and that the said killing resulted from the want of ordinary care and prudence on the part of the agents of the defendant, and not from the want of ordinary care and prudence of the deceased, directly contributing to the accident, that then the plaintiff is entitled to recover in this cause."

Defendant's first prayer: "The defendant, by its counsel, prays the court to instruct the jury that the plaintiff has offered no evidence in this case legally sufficient to entitle it to recover, and their verdict must be for the defendant."

Defendant's second prayer: "And further prays the court to instruct the jury that there is no evidence in this case of any such negligence on the part of the defendant in the discharge of its legal obligations to the deceased, or to the equitable plaintiff in this case, as entitles the plaintiff to recover in this action."

Defendant's third prayer: "And further prays the court to instruct the jury that if they find from the evidence that, at the time of the accident sued for, the defendant was operating a railroad through the suburbs of the village of Luke, in Allegany county, and that immediately west of its main track it had a siding opposite the house of a certain Mr. Rogers and that the boy, Melville W. Fuller, for whose death this suit is brought, was standing on the company's right of way between the fence of said Rogers' lot and said siding, waiting for a train of cars which was then on said siding to move off the same so that he could cross the same with a bucket of water to the automobile works on the east side of said railroad, and that while said boy was so standing there part of the cars of freight train of the defendant which had gone up the track about a quarter of a mile broke loose from the train to which they were attached and ran back down the main line of said track, and that just before said cars broke loose and ran back said train which had been standing on said siding was pulled onto the main track going east by the servants of the defendant, and had all gotten off of said siding onto said main track except one car and the caboose on the rear end of said east-bound train and that said cars so running back on said main track side-wiped and struck said caboose and knocked it over against and upon said boy, where and while he was so standing on the west side of said siding waiting to cross the track, whereby said boy was killed, still the plaintiff is not entitled to recover, even though the jury shall further find that at the time he was waiting to cross said track and for a long time before there was a path or walk across the right of way of the tracks of the defendant from the property of said Rogers over to said automobile works, over which persons, together with the said boy, were accustomed to pass and repass, and over which said boy on said occasion was waiting to pass, and even if the jury shall further find that none of the cars which broke away from said train and ran back on the main track were equipped with air brakes, or connected up with air-brake connections, with the balance of said train from which they had just broken."

Defendant's sixth prayer: "And the defendant further prays the court to instruct jury that under all the circumstances of this case the defendant owed no duty to the deceased, or to the equitable plaintiff, to equip its cars, or any of them, with air brakes, in the running of its trains; and even if the jury believe from the evidence that the defendant failed so to equip its cars, and that the death of the said Fuller boy resulted from that failure, yet the plaintiff is not entitled to recover."

Defendant's seventh prayer: "And the defendant further prays the court to instruct the jury that even if they shall find that the cars which broke loose and ran back were not equipped with air brakes, and if they had been so equipped they would have stopped, and not run back, resulting in the collision testified to by the witnesses, yet that the direct and proximate cause of the accident was the parting of the cars from the train, and not the failure to have said cars equipped with air brakes, and there being no sufficient evidence in this case to show that the parting of the train was due to any negligence of the defendant, the plaintiff is not entitled to recover."

Defendant's eighth prayer: "And further prays the court to instruct the jury that if they find that, but for the intervention of the train going east, the cars which broke off and ran back would have gone on down the main track of the defendant's railroad, and done no injury to the deceased, then the plaintiff is not entitled to recover, even though the jury may find that the cars which ran back and struck the intervening train were not equipped with air brakes, unless the jury further find that in drawing said eastbound train out of the siding on to the main track the servants of the defendant were guilty of negligence in so doing."

Defendant's ninth prayer: "And further prays the court to instruct the jury that there is no evidence in this case legally sufficient to show that the servants of the defendant were guilty of any negligence, under the circumstances, in drawing said eastbound train from the siding on to the main track, or that the parting of said train was in any way caused by the negligence of the defendant."

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE, SCHMUCKER, and JONES, JJ.

Benjamin A. Richmond and C.W. Daily, for appellant.

James Blackiston and D.J. Lewis, for appellee.

McSHERRY J.

This is a personal injury case. All the questions involved arise on the instructions granted and on the prayers rejected by the trial court, and they are brought up by the one bill of exceptions which the record contains. The legal principles that must control the final decision are perfectly familiar, and the only difficulty presented springs, as is generally the case, from the application of those principles to the peculiar facts of the occurrence. A brief statement of the facts--both those which are uncontroverted and those which are disputed--will now be made, as they furnish the basis of the discussion which will follow.

The appellant is a railroad company whose road extends from Cumberland, in the state of Maryland, southwardly to West Virginia Junction, and thence on to Elkins, in the state of West Virginia. The accident out of which this case grew happened near the town of Luke, in Allegany county. At the place of the accident there is a siding used to let trains going in opposite directions pass. On the day the injury was inflicted a train of 49 freight cars, 33 of which were loaded with steel rails and 16 of which were empty, was proceeding southwardly towards West Virginia Junction up a considerable grade, whilst a train of empty freight cars, destined northwardly, stood on the siding waiting for the south-bound train to pass. Upon one side of the railroad track an automobile works was located. Upon the opposite side of the track a man by the name of Rogers lived. The men employed at the automobile works got their drinking water from a well in the yard of Rogers. Melville W. Fuller, a boy of little more than 14 years of age, was employed at the automobile works to carry water from the Rogers' well to the works for the use of the workmen there. To go from the works to the well he was compelled to cross the main track and the siding by a path used by him and others, though the path was not a regular public or private crossing. On July 8th, 1901, the boy crossed the two tracks with a bucket in his hand to get water. Before he could return the north-bound train of empty freight cars backed into the siding, and the south-bound train of loaded and empty freight cars passed, going up a heavy grade. This latter train was hauled by two engines, one of which was in front and the other was some six or seven cars back from the front. After it had passed the switch the train of empties standing on the siding started to pull out. The boy all this while was standing according to the contention of the railroad company on its right of way, but according to the contention of the appellee in the yard of Rogers, waiting for the two trains to clear the crossing at the path so that he might return with his bucket of water to the automobile works. After the south-bound train had passed some distance up the grade, six or eight of the rear cars broke loose and came back at a high rate of speed, and as the train of empties had not entirely cleared the siding the caboose of the former struck with a glancing blow the caboose of the latter, derailing both, and driving the last-named caboose over into the yard of Rogers. It fell upon the boy and instantly crushed him to death. This suit was then brought in the name of the state for the use of the boy's widowed mother against the railroad company to recover...