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

• Decision Date: 21 June 1883
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. THE STATE OF MARYLAND. Use of Minnie F. Hauer and Others.
• Court: Maryland Court of Appeals

60 Md. 449

THE BALTIMORE AND OHIO RAILROAD COMPANY v. THE STATE OF MARYLAND. Use of Minnie F. Hauer and Others.

Court of Appeals of Maryland

June 21, 1883

Appeal from the Circuit Court for Frederick County.

The case is stated in the opinion of the court.

First and Second Exceptions, stated in the opinion of the court.

Third Exception.--The plaintiff offered the seven following prayers:

1. If the jury shall find from the evidence, that on the 4th of June, 1880, Luther Hauer was a passenger in the cars of the defendant, with a ticket entitling him to ride from Hagerstown to Frederick; that he took the train at Hagerstown, and rode thereon to Weverton; that it then became necessary for him to change cars, alighting from said train and passing over certain tracks of the defendant's road to get to another train, called by the witnesses "The Winchester Accommodation Train," in continuation of his said journey to Frederick, and that in so crossing over said tracks to get to said last named train, he was killed by the locomotive and cars of a freight train of the defendant while operated by its agents on its road, and that the equitable plaintiffs are related to him in the manner as set forth in the pleadings herein, and that the said killing resulted directly from the want of the exercise 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, contributing to the accident, then the plaintiffs are entitled to a verdict.

2. That even if the jury shall find that the said Hauer was guilty of the want of ordinary care and prudence in crossing the track of the defendant at Weverton, under the circumstances testified before them; yet, if the jury further find, that if the agents of the defendant had used, in and about the running of the freight train that injured him, ordinary prudence and care in giving reasonable and usual signals of its approach, in keeping a reasonable look-out, and in heeding the danger signals from the station at Weverton, if they find such were given, or in giving the danger signal to the approaching freight train, that the said accident would not have occurred, then the plaintiffs are entitled to recover; provided, they find the facts set out in the first instruction of the plaintiffs.

3. That if the jury shall find from the evidence, that it was necessary for the deceased, in order to take the Winchester accommodation train, then on the south track of the defendant's road at Weverton, if the jury so find, to cross the north track of said defendant's road, and that said Winchester train was then engaged in receiving and discharging passengers, all of whom were compelled to cross said north track, in going either to or from said train, and that passengers were passing, and did pass across said north track, that then the deceased had the right to consider, that these circumstances amounted to an implied invitation on the part of the defendant to the deceased, to cross the said north track, and to an implied assurance, that it would be safe for him to do so.

4. That 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 men to take care of themselves, and to keep out of the way of difficulty and danger.

5. That if the jury shall find from the evidence, that the deceased on the night of June 3rd, and the morning of June 4th, had used intoxicating drink, as testified to by conductor Peters and witnesses Yohn and Hurley; but shall further find, that he was not drunk when he crossed the defendant's track at Weverton, as mentioned in first prayer, such use of intoxicating drink, is not evidence from which the jury may infer the want of ordinary care and prudence on his part.

6. That if the jury shall find for the plaintiffs, then in assessing the damages, they are to estimate the reasonable probabilities of the life of the deceased, Hauer, and give his children, the equitable plaintiffs, such pecuniary damages, not only for past losses, 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 Hauer.

7. That if the jury shall find for the plaintiffs, that then, in awarding the damages to which the plaintiffs are entitled they must apportion the same among the equitable plaintiffs, in such shares, respectively, as they shall find and direct.

And the defendant offered the nine following prayers:

1. If the jury find that the deceased was on the north track of the defendant's road, at Weverton, spoken of by the witnesses, and was there run over and killed by an engine and freight train, improperly and negligently permitted to be run on the said track by the defendant's employees, but further find that the deceased left a place of absolute safety, and attempted to cross the said track, and that before, or whilst in the act of going on said track, the deceased's attention was distinctly called to the fact of the approaching engine and train, and that he knew it was so approaching, and that notwithstanding the fact of his attention being so called, and of his knowledge that the engine and train were approaching, suddenly, and when the engine was so close to him, as to render it impossible for those in charge of the train, by the exertion of the utmost care and caution, to have avoided the peril to which the deceased was exposed, when he attempted to cross the track, and in so doing, was struck and killed, then the verdict must be for the defendant.

2. If the jury find from the evidence, that the deceased was on the defendant's platform, at Weverton Station, with a ticket entitling him to be carried thence to Frederick City, on a passenger train, which was then standing on the defendant's south track at that place, that in order to reach the said passenger train from the station platform, it was necessary to cross another track on the north, and running parallel with that on which said passenger train was standing; and further find, that the defendant's employees, then and there, negligently permitted an engine and freight train to be run on said north track, between the station platform and said passenger train, and deceased attempted to cross said north track to reach his train, and in so doing, was struck and killed by the said freight engine and train, yet the plaintiffs cannot recover in this case, if the jury further find that the deceased voluntarily left the said platform, and attempted to cross the said track, with knowledge on his part, (derived either from seeing the engine and train approaching, or from admonitions and warnings of others of its approach,) that it was dangerous, then and there, to attempt to cross said track, or to be upon it for any purpose, unless the jury further find, that the employees in charge of the train saw, or by exercise of proper care and prudence could have seen the peril to which deceased was exposed, in time to have avoided the injury.

3. If the jury find from the evidence, that the deceased was on the north track of the defendant's railroad, at Weverton, as spoken of by the witnesses, and was run down and killed by a freight engine and train, improperly and negligently allowed to be run on said track by defendant's employees; but further find, that the deceased left a place of absolute safety, and voluntarily went on the said north track, in order to board a passenger train then standing on a track south and running parallel with said north track; and further find, from all the facts and circumstances of the case in evidence before them, that by the exercise of ordinary care, caution and prudence on his part, the deceased could have known of the danger and peril of attempting to cross the said track, or of being on it for any purpose at that time; and that he did not exercise such care, caution and prudence, but went on to the said track and was killed as aforesaid, then the plaintiffs cannot recover, unless the jury further find that the employees in charge of the train saw, or by exercising ordinary care, caution, vigilance and prudence, could have seen the peril to which the deceased had so exposed himself, in time to have avoided the injury to the deceased.

4. If the jury find that the deceased was on the north track of the defendant's road, at Weverton Station, for the purpose of boarding a passenger train, standing on a track running south of and parallel therewith, and on which he was entitled to be carried as a passenger, and that so being on the said north track, he was run over and killed by an engine and freight train, improperly and negligently allowed to be run on said track; yet the plaintiffs cannot recover, if the jury further find that the deceased either saw or knew of the approach of the said freight engine and train, and voluntarily left a place of absolute safety so suddenly as not to afford an opportunity for those in charge of the freight train, by the exercise of care and prudence, on their part, to see and avoid the consequences of the peril to which the deceased had so exposed himself, got on the track and attempted to cross said track, in front of the engine and train, so improperly and negligently running upon it.

5. If the deceased was on the north track of defendant's road at Weverton Station, crossing it in order to board a passenger train standing on a track south of it, and running parallel with it, and whilst so crossing was run down and killed by a freight engine and train, which the defendant's employees improperly and negligently permitted to be run there; but further...