Baltimore & O.R. Co. v. Mulligan

• Decision Date: 17 January 1877
• Citation: 45 Md. 486
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. LUKE MULLIGAN.
• Court: Maryland Court of Appeals

45 Md. 486

THE BALTIMORE AND OHIO RAILROAD COMPANY v. LUKE MULLIGAN.

Court of Appeals of Maryland

January 17, 1877

APPEAL from the Circuit Court for Allegany County.

The appellant was sued by the appellee to recover damages sustained by the loss of his cow, which was run over and killed by the cars of the defendant. It was admitted that the cow when struck was unattended by any one.

Exception.--At the trial the plaintiff offered the three following prayers:

1. That notwithstanding the presence of the cow of the plaintiff on the public highway, if the jury shall find she was on the highway crossed by the railroad, unattended at the time she was killed, is evidence of negligence on the part of the plaintiff, yet it is not such conclusive evidence that the cow met her death by reason of such negligence, as would debar the plaintiff's right of recovery, but if the jury shall find, that by the use of ordinary care on the part of the defendant or its servants, the accident might have been avoided, then the plaintiff may recover, notwithstanding such negligence on his part.

2. That if the jury find from the evidence in the cause that the engine of the defendant struck and killed the cow of the plaintiff whilst she was on Greene street, crossing the road of the defendant, and that the engineer on said train saw said cow as testified, and did not ring the bell or blow the whistle, and gave no other signal except the opening of the cylinder valves; and if they further believe that the opening of said valves were not for the purpose of driving said cow off of said track, but merely in order to get up the grade (if any they should find,) and that all trains use the same means of getting up said grade, then the omission to give the proper signals in order to frighten said cow from the track is negligence, which will render the defendant liable, if they further believe said accident was the direct and immediate result of said omission on the part of the defendant, [but if the jury shall find that the opening of said cylinder valves, whether opened for the purpose or not were reasonably calculated to frighten said cow from the track, such act was the exercise of reasonable care on its part.]

3. That if the jury believe from the evidence in the cause that the plaintiff allowed his cow to run at large, and that at the time of the accident she was crossing the road of the defendant at Greene street unaccompanied, still if they further believe that the defendant was guilty of negligence and that said negligence directly contributed to the killing of said cow without any other contributing negligence of the plaintiff, then the plaintiff is entitled to recover.

And the defendant offered the following prayers:

1. That if the jury shall believe from the evidence in the cause, that the plaintiff's cow was at large and outside of his enclosure, with no one in attendance upon her at the time she was killed by the cars of the defendant, then the plaintiff was in law guilty of negligence in so permitting his cow to be at large and beyond his enclosure with no one in attendance upon her, and he is not entitled to recover, even if they should further find that the agents of the defendant were guilty of negligence in the management of its train.

2. That if the jury believe from the evidence in the cause that the cow of the plaintiff was killed by the engine of the defendant, under the alleged charge of its agents, and that the cow at the time it was killed was on the railroad track of the defendant, and outside of the close of the plaintiff, with no one with her to take care of her, then the plaintiff is not entitled to recover.

3. That if the jury believe from the evidence that the said cow of the plaintiff was killed by the engine of the defendant, under the charge of its agents, and that the cow was on the railroad track of the defendant through any negligence of the plaintiff to keep the cow within his close, the plaintiff is not entitled to recover.

4. That if the jury believe from the evidence that the cow when killed was at large and beyond and outside of the plaintiff's close, with no person in charge of it, then the plaintiff was guilty in law of negligence in so allowing his cow to be at large and outside of his close.

5. That if the jury shall believe from the evidence that the plaintiff's cow at the time she was killed was by herself, and no one in charge of her, and was outside of the enclosure of the plaintiff, then the plaintiff was guilty of concurrent negligence, and is not entitled to recover, even if they should find that the agents of the defendant were guilty of negligence in the management of its train.

6. That if the jury shall find that the cow was not standing on the road of the defendant, when first seen by the engineer, and that she was standing on the line of the Cumberland and Pennsylvania Railroad, and that she did not go upon the defendant's road, until the engine was so near her that it could not be stopped before reaching her, and that the engineer in charge of the engine used ordinary care in endeavoring to scare the cow from the track, then the plaintiff cannot recover. And that if they find that as soon as the engineer saw the cow go upon the defendant's track, he blew off steam to frighten her from the track, such conduct upon the part of the engineer under the facts above stated, was the exercise of due diligence on his part.

7. But if the jury shall find that because of the presence of the cow on the highway (if they shall find at the time of the accident she was upon the highway,) unattended, the accident could not have been avoided by the use of ordinary care and prudence on the part of the defendant or its servants, then its presence on said highway unattended, is evidence of such negligence on the part of the plaintiff as will prevent his recovery in this case.

The Court (PEARRE, J,) granted the plaintiff's first and third prayers, and rejected his second prayer as offered, and granted it as amended by the part contained in brackets; and granted the defendant's fourth, sixth and seventh prayers, and rejected its first, second, third and fifth prayers. The defendant excepted.

The jury rendered a verdict for the plaintiff, and judgment was entered accordingly. The defendant appealed.

The...