Baltimore & O.R. Co. v. Harris

• Decision Date: 25 June 1913
• Citation: 88 A. 282,121 Md. 254
• Parties: BALTIMORE & O. R. CO. v. HARRIS.
• Court: Maryland Court of Appeals

88 A. 282

121 Md. 254

BALTIMORE & O. R. CO. v. HARRIS.

Court of Appeals of Maryland

June 25, 1913

Appeal from Circuit Court, Washington County; M. L. Keedy and Robert R. Henderson, Judges.

Action by Marie Harris, by her next friend, Elias Gatehouse, against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

In action for injuries caused by a fall resulting from freight at whistle and escaping steam from railroad engine instructions denying recovery unless the blowing of the whistle, etc., was for the purpose of frightening plaintiff or was done with a reckless disregard of the effect thereof on her held properly denied as ignoring evidence that the whistle was unusually loud and defendant's duty under the circumstances to exercise reasonable care. Plaintiff's first prayer was as follows:

"The plaintiff prays the court to instruct the jury that if they find from the evidence in this case that on the 20th day of October, 1911, she was traveling along and upon the Williams street crossing of the defendant company in the city of Cumberland, Md., that said Williams street crossing was then and there a public crossing of said city, and that the said crossing was at said time and place blocked by an engine and train of the said defendant company, standing over the whole of said crossing, that the plaintiff waited several minutes for the said train to move off of said crossing so she could pass over the same, and that while so waiting for said train and engine to move off of said crossing the agents and servants of the defendant then and there in charge of said train requested and invited the plaintiff to pass around the front of said engine, and further find that the plaintiff and her companion, in pursuance of said request and invitation, if the jury find the same, started to cross around in front of said engine and that while the plaintiff was crossing over the track upon which said train and engine was then and there standing, and about five feet in front of said engine, the said agents and servants of the defendant company caused the whistle of said engine to be blown in an unusual and unnecessary manner, and at the same time caused an unusual and unnecessary amount of steam to escape from the cylinder cocks of said engine, and if the jury further find that the plaintiff then and there fell upon one of the rails of said tracks as a natural and probable consequence of said fright, and was thereby injured, the plaintiff is entitled to recover. Provided, the jury further find that, in passing around in front of said engine and at the time of the alleged injury, the plaintiff was in the exercise of due care and caution on her part."

Defendant's second, sixth, eighth, and ninth prayers were as follows:

"(2) The defendant prays the court to instruct the jury that even if they find that the train of the defendant mentioned in the evidence was blocking the crossing at Williams street in the city of Cumberland for such time as is prohibited by the ordinance of the said city offered in evidence, and that the plaintiff was told by an employé of the defendant to go around in front of the engine of said train, and that the plaintiff by reason of said direction did go around in front of the said engine of the said train, and that while the plaintiff was crossing the tracks upon which the said train was standing, about five or six feet in front of the engine thereof, if the jury so find, the employés of the defendant in charge of the said engine blew the whistle and opened the cylinder cocks thereof, thereby causing a large amount of steam to be transmitted therefrom, if the jury so find, and that by reason thereof the plaintiff was frightened, and by reason of said fright fell and struck her face upon the rail of the said track, and thereby suffered the injury complained of, still the plaintiff is not entitled to recover, unless the jury shall further find that the blowing of the whistle in the manner in which the same was blown, as found by the jury, was unnecessary and not in accordance with the rules and regulations of the defendant, if the jury find that the defendant had prescribed rules and regulations in reference thereto, or that said whistle was blown in an unusual or negligent manner, or that the opening of the cylinder cocks and letting off of steam at said time was not reasonably necessary for the proper conduct of the business of the defendant."

"(6) The defendant by its attorneys prays the court to instruct the jury that if they believe from the evidence that the plaintiff, Marie Harris, while walking over Williams street crossing of the Baltimore & Ohio Railroad in Cumberland, found the crossing blocked and obstructed by the cars of the defendant, and that she waited for five minutes or more, and that then the agents or servants of the defendant told her to go around in front of the engine, if the jury so find, and that she then left the board crossing of said Williams street, and with her companion, Miss Trieber, walked along the right of way of said railroad, off of the said crossing between the train of the defendant and other cars, if the jury so find, the length of a car or two and the tender and engine of said train, around in front of said engine, if the jury shall so find, and that, when she neared a point on the track of the defendant's railroad on which the engine of said train stood, the engineer of said engine blew two blasts of the whistle of said engine in regular acknowledgment of a proper signal of the brakeman of said train to go forward, to cut the said train, to permit travelers on said crossing to pass over the same, if the jury shall so find, and that the engineer prepared to start said engine forward in the regular, proper performance of his duty to cut said train, if the jury shall so find, and that the said blowing of the whistle and the expulsion of steam was not done in an unusual or unnecessary manner, but in the usual, necessary way to properly perform his duties as the servant of the defendant, and that the plaintiff while so crossing in front of said engine became frightened by the said blast of the whistle and the expulsion of the steam from said engine, if the jury shall so find, and fell and was injured, if the jury shall so find, she cannot recover in this case, and their verdict must be for the defendant."

"(8) The jury is instructed that if they find from the evidence that the plaintiff was in a place of safety on the Williams street crossing of the defendant's railroad, before the injury complained of, and that she left said crossing without any invitation or direction of defendant's servants or agents and went upon the right of way of defendant around in front of the said engine and was frightened by the blast of the whistle and the escape of steam caused her to fall and suffer injury, then she directly contributed to her own injury by her own negligence, and their verdict must be for the defendant, even if they further find that the whistle was blown in an unnecessarily loud way and the steam permitted to escape from the engine in unnecessarily large quantities.

"(9) The jury is instructed that if they find from the evidence that, when the plaintiff attempted to pass over the Williams street crossing of the defendant in Cumberland, she found the same blocked by a train of defendant's cars, if the jury shall so find, and she waited there for five minutes or more, and that one of the servants of the defendant then told her to go around in front of the engine, if the jury shall so find, and that she then left the crossing, walking between said train and other cars, on the next track for 40 feet or more, if the jury so find, and proceeded to go around in front of said engine, if the jury shall so find, and that, when she was crossing the track on which said engine stood, the engineer blew a blast or blasts of the whistle of said engine and opened the steam cocks of the cylinders thereof, from which large amounts of steam were expelled, and that the plaintiff was frightened thereby and fell and was injured, yet their verdict must be for the defendant if they further believe that the use of the whistle and the steam by the engineer was a reasonable and proper use thereof and necessary in the proper operation of the said engine, in the conduct of defendant's business."

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

George A. Pearre, of Cumberland, for appellant. Walter C. Capper, of Cumberland, for appellee.

THOMAS J.

The declaration in this case charges that the defendant maintained a number of tracks across Williams street, one of the public streets of Cumberland, Md., and that on or about the 20th day of October, 1911, the equitable plaintiff "was lawfully traveling along said Williams street, and using due care and caution, and approached the crossing of the defendant over said" street, which crossing "at that time was partially occupied by an engine of the defendant company, in charge of an engineer and fireman of the defendant, who were then and there acting as its servants and agents; that the plaintiff stopped at said crossing and waited for a long time" for the "defendant, its servants and agents, to remove said engine off said crossing so that she might pursue her way over said crossing to her work at the Footer's Dye Works, in Cumberland; that after she had waited for more than five minutes for the said engine to be taken off of the said crossing, the engineer and fireman of the defendant, in charge of said engine, called to her and told her to pass around in front of said engine and cross on over the crossing; and that thereupon the plaintiff, using every care and caution...