Baltimore & P. R. Co. v. State

• Decision Date: 14 January 1892
• Parties: BALTIMORE & P. R. CO. v. STATE, TO USE OF ABBOTT, (TWO CASES.)
• Court: Maryland Court of Appeals

23 A. 310

75 Md. 152

BALTIMORE & P. R. CO. v. STATE, TO USE OF ABBOTT, (TWO CASES.)

Court of Appeals of Maryland

January 14, 1892

Appeal from Baltimore court of common pleas.

Action by the state of Maryland, for the use of Joseph Abbott against the Baltimore & Potomac Railroad Company for the wrongful death of Harvey F. Abbott. Judgment for plaintiff. Defendant appeals. Reversed.

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

Bernard Carter, J. J. Donaldson, and C. H Carter, for appellant.

J. V. L. Findlay and Thos. Mackenzie, for appellee.

ALVEY C.J.

This action was brought in the name of the state for the use of the father of Harvey F. Abbott, who was killed in the railroad tunnel of the defendant corporation, under the city of Baltimore, on the 25th day of August, 1890, to recover for alleged negligence of the defendant as the cause of the death of the son. The deceased was in the employ of the defendant company as brakeman on a freight-train, and was killed while so employed on such train in passing through the tunnel. And the main question under the statute (Code, art. 67,§ 1) is whether the death of the deceased was caused by any such wrongful act, neglect, or default of the defendant as would, if death had not ensued, have entitled the party injured to maintain the action for such injury; and upon the evidence produced the preliminary question arises whether the evidence was legally sufficient to have been submitted to the jury for their consideration. The trial in the court below resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.

There is no real dispute or conflict in regard to the facts. The young man who came to his death by the accident was about 22 years of age, and had been in the employ of the company some two or three months immediately preceding the time of his death. He had been in railroad employment prior to the time of his entering the service of the defendant; and during the whole time of service with the defendant his duty required him to go through the tunnel on trains two or three times a day. He was therefore fully acquainted with the tunnel, and with its physical conditions. According to the evidence, the tunnel is near about one mile and a half long, divided into three sections by open cuts; and it was in that section that runs from Pennsylvania avenue to Gilmor street that the mangled body of the deceased was found shortly after the accident happened. No one saw or could tell how the accident occurred. It is not pretended that there was any defect in the track of the road, or in the machinery of the train, or anything unusual or extraordinary in the make-up of the train, upon which the deceased was acting as brakeman, or that there was any negligence or want of ordinary care in conducting the train through the tunnel. But the contention is that the tunnel is not sufficiently ventilated; that it is not sufficiently supplied with vents or flues to relieve it of the immense quantity of smoke and gas generated by and emitted from the engines while passing through the tunnel and that the condition of the tunnel was the immediate or primary cause of the accident to the deceased. This tunnel, according to the evidence, has been in use, as part of the road-way of the defendant, for nearly 20 years past; and for the last 10 or 15 years there have passed through the tunnel, on an average, from 100 to 125 trains--passenger and freight--daily; and the ordinary time for passing through is from 6 to 9 minutes. And, while accidents have happened in the tunnel, the evidence does not show that there has ever been an instance of suffocation, or of death produced by anything like asphyxiation caused by the smoke and gas which at times are shown to be very distressing and oppressive to the railroad employes exposed to it. What is or would be a proper ventilation for the tunnel is a question of scientific engineering, and depends upon a great many conditions. It depends upon the length, curvatures, and grades of the tunnel, its height and width, the number of trains passing through daily, and the time of intermission between trains, the character of the fuel consumed, and largely upon the state of the atmosphere, and the direction and strength of the wind currents through the tunnel. There was no testimony offered of a scientific character to show in what respect and to what extent the ventilation of the tunnel could be improved by any reasonable supply of means in addition to those actually supplied; and whether the provision actually made for the ventilation of the tunnel, and to relieve it of smoke and gas, is so inadequate as to render it unsafe to the life of one, in ordinary health, in passing through it, as brakeman on a freight-train, as the deceased was doing at the time of his death, is at best but matter of speculation and conjecture No rational mind could so conclude with any degree of certainty from the evidence in the record. The day upon which the accident occurred, according to the uncontradicted proof, the weather was clear and fine, and at the time...