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

• Decision Date: 02 July 1884
• Citation: 62 Md. 479
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. STATE OF MARYLAND, use of GRACE M. ALLISON, by her next friend, CATHARINE BEETZ.
• Court: Maryland Court of Appeals

62 Md. 479

THE BALTIMORE AND OHIO RAILROAD COMPANY v. STATE OF MARYLAND, use of GRACE M. ALLISON, by her next friend, CATHARINE BEETZ.

Court of Appeals of Maryland

July 2, 1884

APPEAL from the Circuit Court for Baltimore County.

This case was instituted in the Superior Court of Baltimore City whence it was removed to the Circuit Court for Howard County and thence to the Circuit Court for Baltimore County, where it was tried. The nature of the case, and of the exceptions taken, are sufficiently set forth in the opinion of the Court. It is proper, however, to state in addition, that the amendment to the narr. and its titling, the granting of which by the Court formed the subject of the first exception, was the insertion of the words: "The State of Maryland for the use of" before the words "Grace M Allison," in the commencement of the narr. and in the titling of the narr. There was a verdict and judgment for the plaintiff for $5,000. The defendant appealed.

The cause was argued before ALVEY, C.J., ROBINSON, IRVING RITCHIE, and BRYAN, J.

John K. Cowen, for the appellant.

B. R. Boarman, and John I. Yellott, for the appellee.

IRVING J., delivered the opinion of the Court.

The motion to dismiss this appeal must be overruled. It is apparent from the proofs submitted that the delay in the transmission of the record, was not occasioned by any fault of the appellant, but was the fault of the clerk, who so admits on oath.

On the night of the 9th of July, 1881, William J. Allison, the father of the equitable plaintiff, is alleged to have been killed by a train of the appellant's railroad cars passing over him; and this suit is brought in the name of the State, for the use of his only child, to recover damages for the death of the father, by the negligence of the defendant's employés.

The first exception is to the allowance of an amendment to the plaintiff's narr. and titling to it. The theory of the exception is that an entirely new party has been admitted contrary to the provisions of section 29 of Article 75 of the Code. But this is a clear misapprehension. By examining the record we find the suit was brought by titling in the name of the State, use of Grace M. Allison, by her next friend Catherine Beetz. When the declaration came to be filed, in the titling thereto, and in the commencement thereof the name of the State was omitted, and the leave asked was not to amend the titling to the suit, but that of the declaration itself, and the declaration also. The granting of this motion allowed the plaintiff to do no more than make the declaration conform to the original titling, and the summons which issued in pursuance of it, and was entirely justified by the 23rd section of Article 75 of the Code and the uniform practice which has obtained thereunder. There was therefore no error in that regard.

The second bill of exception presents a question of the admissibility of a certain statement of the engineer, alleged to have been made to the switchman immediately after the accident. Procter, the witness, was flagman and switch tender for the appellant at the time of the accident, at the watch box on the appellant's road where it curves off from the main road and runs down across Fort Avenue to the appellant's coal hopper yard. This witness said it was the engineer's business to inform him of any obstructions that might be on the track, so that he might hold the following train till the obstruction was removed. He stated that the engineer told him there was a man killed down on the track. To this no objection was made, it being conceded to be within the line of the engineer's duty to state that much. The plaintiff then asked "what was the communication made to you by the engineer Davis when he came back, as to how the man was killed?" Objection was made to this question, but it was overruled, and exception was taken. The statement made and allowed was, that in response to a question from the witness, "what kind of looking man he was," he responded, described the man, and said "he had pulled the whole train over him." We are at a loss to perceive upon what principle this question and answer can be admitted. The fact that there was a man killed on the track was all that the watchman need know for the discharge of his duty in preventing another train from going down the track. How it was done was immaterial so far as his duty was concerned, and as proof in the cause, nothing that the engineer stated to the witness, beyond the fact that there was a man killed and on the track, ought to have been admitted; for it was clearly hearsay. How it was done, the Court recognized as inadmissible and refused to let the witness proceed with any further detail. We cannot see why what he did say was less objectionable than further particularity in respect to the matter. It was not offered to impeach the engineer, whose testimony was not then in, as a contradictory statement; and it was error to permit the witness to say more than that Davis told him a man had been killed and was still on the track. It is so clearly obnoxious to the objection of being hearsay, that we need not cite authority in support of this ruling.

The third exception is to the refusal of the Court to take the case from the jury by granting the defendant's prayer to that effect offered at the close of the plaintiff's testimony. As this prayer was renewed after the defendant's testimony was all in, and was again refused, and exception was taken to that refusal and the granting of certain instructions on the behalf of the plaintiff as well as the rejection of others on the part of the defendant, all which is presented by the fourth exception, we shall consider that question in the light of the whole case as presented by the proof embodied in all the exceptions.

The main facts which need recital are undisputed or uncontradicted. At a point in the City of Baltimore, where the appellant's road forks, and one track, called the New York cut off, goes on to the ferry, and the other track curves off and runs down to the appellant's coal hopper yards, there is a watch box, where the defendant keeps a watchman or a switch tender. From this point, to the hopper yards of the appellant, the appellant's road runs on its own private property, condemned and purchased for the purposes of its road. Although it passes through the city, that portion of the road where the accident occurred passed through an uninhabited and unbuilt up portion of the city, where there are and were no streets, opened and used as such. Streets are laid down on Poppleton's plat, to be opened whenever the needs of the city require it because of expansion in that direction; but as yet it is uninhabited, and no streets have been condemned or opened. Fort Avenue is a public highway and quite a travelled thoroughfare. This track crosses Fort Avenue in its route to the hopper yards, about four hundred and fifty yards from the watch box on Wills street. The accident happened about three hundred yards from Fort Avenue and about one hundred and fifty yards from the watch box. From the watch box the hopper tracks curve off to the left from the main road, and the track runs upon a "high fill," fifteen or twenty feet high through a swamp called the "Devil's bucket," into which the road bed slopes steeply on each side. This embankment extends nearly to Fort Avenue. Persons can walk along the side of the track, but cannot ride or drive along it. Some people use it in the day time as a pathway down to Fort Avenue; but it was never so used at night. Although the track is laid on this high fill the road is down grade toward Fort Avenue.

At the point where the accident occurred no street is projected for the future even. There are two hopper tracks; and before reaching Fort Avenue, the engine was usually switched off and running back on the other track to the watch box, got on the other track again to push the cars to the hopper yard. About twenty-five minutes past 1 o'clock a. m. on this occasion the appellant's engine, with tender and twelve loaded coal cars, passed the watch box, and went down toward Fort Avenue. The train went down on the south track, and the engine came back in from three to five minutes, on the other track, and then the engineer informed the watchman that a man was killed on the track. The train was moving two, three, or four miles an hour. No bell seems to have been...