Baltimore & O.R. Co. v. State, to Use of Mahone

• Decision Date: 06 February 1885
• Citation: 63 Md. 135
• Parties: THE BALTIMORE & OHIO RAILROAD COMPANY v. THE STATE OF MARYLAND, Use of Martha E. Mahone and Others.
• Court: Maryland Court of Appeals

63 Md. 135

THE BALTIMORE & OHIO RAILROAD COMPANY v. THE STATE OF MARYLAND, Use of Martha E. Mahone and Others.

Court of Appeals of Maryland

February 6, 1885

Appeal from the Court of Common Pleas.

This action was brought by the appellee against the appellant under the Code, Art. 65, to recover damages for the injury caused to the equitable plaintiffs by the killing of their mother, Hannah Queen, by an engine and train belonging to the defendant. The case is stated in the opinion of the court.

First Exception.--Abandoned.

Second Exception.--At the trial the plaintiff offered the five following prayers:

1. If the jury find from the evidence that the defendant was, on the 1st of August, 1883, possessed of railroad tracks running past Mount Winans Station, in Baltimore county, over which it ran cars, in which it carried passengers for hire and reward and that on the above mentioned day Hannah Queen went to the said station of the defendant for the purpose of riding upon such cars, and was possessed of a ticket entitling her to do so, and if the jury find that she was told by the agent of the defendant, having charge of said station, after having come to the said station, to come across the track to take her train; that in obedience to this, she went over the tracks of the defendant, towards the platform habitually used by passengers taking the train she intended to take of defendant, on the opposite side of the tracks from the ticket office where she then was, and that whilst so doing she was run over and killed by a train of cars operated by the defendant's agents and employes, then if the jury find that the equitable plaintiffs are related to her, as set forth in the pleadings herein, and that the said killing resulted directly from the want of the degree of care and prudence which it was practicable for the agent or any of the servants of the defendant to use, having a due regard to the nature of their employment, and the efficient prosecution of the business of the road, and not from the want of ordinary care and prudence of the deceased, directly contributing to the accident, then the plaintiffs are entitled to a verdict if the jury further find that they have by the death of the said Hannah sustained a pecuniary loss.

2. If the jury find that the deceased was at the station of the defendant, possessed of a ticket, and with the intention of taking the train, and that whilst so there and crossing the tracks under the direction of the agent of the defendant, she was killed by defendant's cars, the presumption is that the injury resulted from the negligence of the defendant unless the defendant shows that said injury did not result from its negligence.

3. In considering the question of negligence, it is competent for the jury in connection with the other facts and circumstances of the case to infer the absence of fault on the part of the deceased, from the general and known disposition of persons to take care of themselves and to keep out of the way of difficulty and danger.

4. If the jury find for the plaintiffs, then in assessing the damages they are to estimate the reasonable probabilities of the life of the deceased, Hannah Queen, and give the equitable plaintiffs such pecuniary damages, not only for past losses, if they find any loss, but for such prospective damages as the jury may find that they have suffered, or will suffer, as the direct consequence of the death of the said Hannah Queen.

5. If the jury shall find for the plaintiffs, then in awarding the damages to which the plaintiffs are entitled they must apportion them among the equitable plaintiffs in such shares respectively, as they shall find and direct.

And the defendant offered the nine prayers following:

1. That upon the pleadings and evidence in this cause, the plaintiffs are not entitled to recover in this action.

2. That as there is no evidence in the cause legally sufficient to show that the death of Hannah Queen was caused by any negligence or want of skill and care on the part of the defendant or its agents, the plaintiffs cannot recover in this action.

3. If the jury shall believe from the evidence that Hannah Queen, the mother of the plaintiffs, John A. Queen and James H. Queen, and Martha E. Mahone, the wife of Thomas R. Mahone, for more than three years prior to the happening of the accident mentioned in the declaration which it is alleged caused her death, made her home with the said Thomas R. and Martha E. Mahone, and was supported by them and her two said sons, and that all of her said children were over twenty-one years of age, and married at the time of the death of the said Hannah Queen, and not dependent for their support upon said Hannah Queen, then the plaintiffs are not entitled to recover in this action, although the jury may further find from the evidence in the cause that the said Hannah Queen, while she lived with the said Mahones, rendered various domestic services to them, and also visited the homes of her said sons when there was any sickness in their families.

4. Even if the jury find that the death of the deceased occurred through the negligence of the defendant or its agents, yet the plaintiffs cannot recover, because the negligence of the deceased directly contributed thereto.

5. If the jury shall find from the evidence that the deceased, Hannah Queen, was twice told by the witness, Story, defendant's agent, that her train was coming, to come across at a time when the train was sufficiently distant for her to do so with safety, and that she heard said call and did not follow, but hesitated, and afterwards attempted to cross when it was too late to do so, and was killed in so doing, then the plaintiffs are not entitled to recover.

6. If the jury find for the plaintiffs, then in assessing damages they must not consider the anguish and distress of mind caused to the children of deceased by her death, but in making up their verdict should allow for all losses occasioned by her death to her children, and confine themselves to such sums as they shall find the services of said deceased were worth.

7. That if the jury should find for the plaintiffs, they cannot, in assessing the damages, take into account the money that could have been earned by Martha E. Mahone by her labor, in case deceased had not been killed, but must confine themselves to the strict value in money of the services rendered by the said deceased, if they had been rendered to any other person.

8. That there has been no evidence offered by the plaintiffs legally sufficient to entitle the equitable plaintiffs, John A. Queen and James H. Queen, to recover any damages in this action.

9. That if the jury believe from the evidence that the deceased, after being twice told by defendant's agent, Story, to come across, and that her train was coming, at a time when she could safely have done so, was afterwards told by the witness, Rezin Williams, that it was too late for her to come across, and attempted to cross in spite of said warning, and without looking for said train, then the plaintiffs cannot recover.

The court (Phelps, J.) granted the first, third, fourth and fifth prayers of the plaintiffs, as offered, and the second prayer of the plaintiffs, with the following modification, to wit: "Or that the accident could have been avoided by the exercise of ordinary care on the part of the deceased."

And granted the defendant's sixth prayer, as offered, and its fifth prayer, with the following modification: "Provided, they find, that in so hesitating, and afterwards attempting to cross when too late, the deceased failed to exercise ordinary care and prudence, in view of all the circumstances which the jury may find surrounded her at the time." And granted the defendant's ninth prayer, with the following proviso: "Provided they find that in so attempting to cross the deceased failed to exercise ordinary care and prudence, in view of all the circumstances which the jury may find surrounded her at the time."

And rejected the defendant's first, second, third, fourth, seventh and eighth prayers. The defendant excepted. The defendant also specially excepted to the granting of the plaintiffs' prayers, and each of them, on the ground that there was no evidence to support the same.

The jury rendered a verdict for the plaintiffs, to be distributed as follows: To Mrs. Mahone, $1000; to John A. Queen, $100, and to James H. Queen, $100. The court entered judgment on the verdict for $1200, with interest, etc.

The cause was argued before ALVEY, C.J., STONE, MILLER and ROBINSON, JJ.

W. Irvine Cross and John K. Cowen, for the appellant.

William S. Bryant, Jr., and John T. Ensor, for the appellee.

Robinson J., delivered the opinion of the court.

The court was right in this case, we think, in leaving the question of negligence on the part of the appellant to the finding of the jury. The deceased, a colored woman about forty-seven years of age, had purchased a ticket from Mount Winans to Baltimore City. Mount Winans is a third-class station at which the way trains stop on signal by the...