Baltimore & O.R. Co. v. Stricker

• Decision Date: 25 March 1879
• Citation: 51 Md. 47
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. ELI STRICKER.
• Court: Maryland Court of Appeals

51 Md. 47

THE BALTIMORE AND OHIO RAILROAD COMPANY v. ELI STRICKER.

Court of Appeals of Maryland

March 25, 1879

APPEAL from the Circuit Court of Frederick County.

The facts of this case (which was removed from the Baltimore City Court on the suggestion and affidavit of the defendant) are stated in the opinion of the Court.

Exceptions.--At the trial the plaintiff offered the following prayers:

1. That if the jury find from the evidence that the defendant is a corporation owning and operating a railroad as set forth in the declaration, and was at the time of the alleged injuries complained of, and that the plaintiff entered the service of defendant in 1867, as freight brakeman on the first division of defendant's road, and so continued until July, 1869 and then became a freight conductor on the same division, in the same service, and so continued and so was at the time he received the injuries testified to, if they should find such injuries, and that his duties in each position required him at times to be on top of house cars, and that at the time plaintiff so engaged defendant's service, there was a bridge known as the "Bull Eye" bridge, built by defendant over and across its roadbed on said division, and that said bridge was so constructed as that all of defendant's employés, who had occasion to pass thereunder in the discharge of their duties, on the tops of such cars as defendant then used upon its road, could so pass thereunder with safety; and shall further find that after plaintiff had so entered defendant's service, the defendant introduced and used upon its said road, and on said division, both through connections formed with other roads and by its own manufacture thereof, another and a higher kind of house cars than defendant had previously had in use upon its road, and continued year by year so to use, and to increase the number of such higher cars upon its road, and on said division until in 1872, and after, and that during the year 1872, the defendant had in use on its said road and division a large number of said higher cars, and was then manufacturing the same at its own works for use on its said road at the rate of about 100 per year; and that during the year 1872, the defendant took down the bridge known as the "Bull Eye" bridge, which was standing at the time plaintiff entered defendant's service, and erected over and across its road-bed at the same point, and in lieu of said former bridge, another bridge, and that defendant in the construction, plan and elevations of said bridge of 1872, did not use ordinary and reasonable care, having a due regard to the safety of such of its employés as were required in the discharge of their duties to pass on the tops of such higher cars under the said bridge of 1872, and that the defendant when it built said bridge knew that the same was not a safe and suitable bridge, so far as the safety of such of its said employés was concerned; and should further find that the plaintiff, while in the discharge of his duties as such freight conductor, upon the top of one of said higher cars was, on June 6th, 1879, struck by a strut of said bridge and injured, then the plaintiff is entitled to recover, if the jury further find that when he was so struck, he was using ordinary and reasonable care under the circumstances, and did not know that said strut was too low to allow him to pass under said bridge, standing on top of such higher car, with safety, unless they find that the insufficient height of said strut was plainly and obviously apparent, and that the burden of proving such knowledge on the part of plaintiff, or of proving that the height of said strut, was plainly and obviously insufficient, is on the defendant.

2. That if the jury find for the plaintiff under his first prayer they are, in estimating the damages, at liberty to consider the health and condition of the plaintiff before the injuries complained of, as compared with his present condition, in consequence of said injuries, and whether the said injuries are in their nature permanent, and how far they are calculated to disable the plaintiff from engaging in those pursuits and employments for which, in the absence of said injuries, he would have been qualified, and also the physical and mental suffering to which he was subjected by reason of said injuries, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injuries which the plaintiff has sustained.

The defendant offered the following prayers:

1. That if the jury shall find the defendant is a corporation, owning and operating a railroad, as charged in plaintiff's declaration, and that in the year 1858, they erected a wagon road bridge over said railroad, near Martinsburg, West Virginia, and that said bridge was too low for a man standing erect on house cars, then in use, to pass thereunder in safety, and that while said bridge was in existence, the plaintiff, in the year 1867, entered the employment of defendant, as brakeman on freight trains, and continued so for nineteen months, and was then promoted to be a conductor of freight trains, and that the plaintiff knew said bridge was too low to pass thereunder in safety, on the top of house cars, in use on defendant's road; and shall also find that in the month of May, 1872, said defendant tore down said bridge and erected a new bridge, and that said new bridge was higher than the old one, but not sufficiently high to permit a man standing erect on house cars, in general use on defendant's road, to pass thereunder with safety, then the risks assumed by plaintiff, when he entered the service of defendant, were not increased by the erection of said new bridge.

2. That if the jury shall find the facts stated in the first prayer, and that the plaintiff continued in the service of the defendant as a conductor as aforesaid, and that in the course of his employment he passed and repassed under said bridge almost daily in going over the first division of defendant's road, extending from Baltimore to Martinsburg, West Virginia, from the time said bridge was built in May, 1872, to the time of the happening of the accident to plaintiff, on June 6th, 1876, and with house cars in general use on defendant's road; and shall further find that said bridge was a permanent structure, visible to the observation of all, and that plaintiff was acquainted with the location, situation, appearance and all the surroundings of said bridge, then [the jury may infer] that the plaintiff had equal opportunity as the defendant of knowing that said bridge was too low to permit a man standing erect on top of house cars in general use on defendant's road, to pass with safety under said bridge.

3. That if the jury shall find the facts in the foregoing prayers of defendant, and shall also find that the plaintiff, on the morning of June 6th, 1876, as conductor aforesaid, had charge of the fifth section of train No. 35, going east, and that said train consisted of eighteen gondola cars, four coal hoppers, one house car and a caboose, and that plaintiff with said train was ready to start at 6 A. M., (with said train,) to go over said first division, and ran into a siding on said road off of main track, a short distance west of said bridge, to wait till a passenger train, known as No. 27, had passed down said road, and that after the passage of said train, the train of cars of which plaintiff was conductor, came out of said siding on the main track of defendant's road, and that the brakeman on plaintiff's train let down the switch balls to permit said train to run on said main track, and the plaintiff remained on said train and applied the brakes, and that after said brakeman had locked the switches, and had got upon said train, said plaintiff gave the engineman the signal to go ahead, and that thereupon said train started, and said plaintiff commenced letting up brakes six or seven cars from the rear end of said train, and so continued to let up said brakes until he reached said house car next to the caboose car, and had climbed up on top of said house car for the purpose of letting up the brake of said car and going to the caboose car, and had just reached a standing position on said car, with his back to said bridge, when the back part of his head came in contact with the strut of said bridge, knocking him off of said car and injuring him; and shall further find, that at the time of the happening of the accident of plaintiff, he was in the discharge of his duty, and that he had never made objections to any of the officers of said defendant to the lowness of said bridge, or to the cars then in general use on defendant's road; and shall also find that plaintiff had equal opportunity as defendant of knowing that said bridge was too low to permit a man, standing or walking on the top of house cars in general use on defendant's road at the time of the happening of the accident to plaintiff, to pass thereunder in safety, then that the plaintiff is not entitled to recover in this action, damages for injuries sustained by reason of the lowness of said bridge, and their verdict must be for the defendant.

4. If the jury find that at the time and place, when and where the injury complained of happened, the plaintiff was conductor of a freight train in the employ of the defendant, and that the bridge mentioned in the declaration was too low to permit the plaintiff to pass, without injury or harm, under it, standing or walking on the tops of one of the house cars in his train and that the plaintiff was then and there discharging his duty as conductor, but further find that the bridge had been of the same height for two, three or four years before the accident, during which time the plaintiff had frequently, in...