Baltimore & O.R. Co. v. Boteler

• Decision Date: 10 July 1873
• Citation: 38 Md. 568
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. THOMAS BOTELER.
• Court: Maryland Court of Appeals

38 Md. 568

THE BALTIMORE AND OHIO RAILROAD COMPANY v. THOMAS BOTELER.

Court of Appeals of Maryland

July 10, 1873

APPEAL from the Circuit Court for Washington County.

The nature of the case is stated in the opinion of the Court.

Defendant's First Exception.--At the trial of this case the plaintiff, to support the issues on his part joined, proved that on the night of the 21st of November 1867, in returning from Harper's Ferry to his home, near Weverton, he missed the entrance to the bridge of the defendant, provided for foot passengers, and walked over an abutment or embankment some twenty feet high, placed there by the defendant, and was greatly injured, and crippled for life; that the defendant charged toll for crossing the bridge, which was paid by the plaintiff; and further proved that the accident happened about nine o'clock at night that the night was very dark; that no lights of any kind were kept about the premises by the defendant at that time; that the ground was levelled off, and the wall of the abutment or embankment was level with the ground, and had no railing or other structure to prevent accident. The defendant then proved by W. S. Brashears that he had known the plaintiff for twenty-five years, and knew his habits; that on the night of the accident he saw him about seven o'clock, in a barber's shop at Harper's Ferry, very much intoxicated--he was quarrelling with a stranger then being shaved. The defendant then offered to prove by said witness that the plaintiff was a most intemperate man for a long time before, and up to the time of the injury; was an habitual drunkard during all that time, and would become intoxicated whenever he could get the liquor; that he often went to Harper's Ferry, and never went there without becoming intoxicated if he had money to get the liquor, and when intoxicated was unable to attend to any business whatever.

To the proof so offered, the plaintiff objected, and the Court (MOTTER and PEARRE, J.,) sustained the objection, and the defendant thereupon excepted.

Defendant's Second Exception.--The defendant, further to maintain the issue on its part joined, offered to prove by several witnesses that the plaintiff since his injury, and up to the trial, had continued to be a very intemperate man, often getting very drunk, and under the influence of liquor whenever he could get it, and by his excessive intemperance had greatly abused himself. To this offer of proof, the plaintiff objected and the Court sustained the objection. The defendant thereupon excepted.

Defendant's Third Exception.--The defendant then proved by E. Crowl, that on the evening of the accident between six and seven o'clock, he saw the plaintiff whom he had known for many years, leaning against the Galt House, a drinking saloon, intoxicated; and by Mr. McCarty, who was the toll collector on the bridge the night of the accident, that he saw the plaintiff about 8 o'clock entering the opening of the bridge from the Virginia shore, in a very intoxicated condition, staggering from side to side of the bridge, and persuaded him not to go across, telling him that in his condition it was a dangerous undertaking--that the plaintiff thereupon went back, the witness accompanying him beyond the bridge as far as the Y track. The defendant further proved by Mr. Woods, that during the spring following the accident, he asked the plaintiff how it happened, and he replied, "he could not tell anything about it; he did not know anything about it." Other evidence adduced at the trial will be found in the opinion of the Court.

The plaintiff offered eight prayers; the third, fourth, seventh and eight, of which the Court granted, the others it rejected. The following only, it is deemed proper to insert:

3d. That in considering the question of ordinary care and prudence on the part of the plaintiff, the jury have a right to take into consideration, together with the other facts of the case, the known and ordinary disposition of men to guard themselves against danger.

4th. That if the jury find from the evidence in this cause, that the plaintiff had used intoxicating drink on the night of the 21st of November, 1867; but shall further find that he was not drunk when he started from the Galt House, distant 75 or 85 feet from the bridge of the defendant, such use of intoxicating drink is not evidence from which the jury may infer the want of ordinary care and prudence on his part.

The defendant submitted the following prayers:

1. If the jury shall believe from the evidence, that the injury complained of, happened to the plaintiff by falling from the retaining wall of the Y track of the Baltimore and Ohio Railroad, fifteen feet or more above the bridge, and that the place where the accident occurred is not in nor a part of the highway, then the plaintiff is not entitled to recover.

2. If the jury shall believe from the evidence, that the plaintiff fell from the retaining wall of the Y track of the defendant, beyond the bridge, at the place shown by the evidence in the case, (if the jury shall believe the same;) and shall also believe that the place where the accident happened is not a thoroughfare, and not in the highway, and not used by the public in approaching the bridge, but was owned, used and occupied by the defendant as a switch or track for its own use and purposes, separate and distinct from the bridge, that then the plaintiff is not entitled to recover.

3. If the jury shall believe from the evidence that the place where, as is alleged, the accident happened, was along the travelled path for footmen approaching the bridge from the passenger depot of defendant, or other point west of the bridge, going eastward to the mouth or south end of the bridge, but was beyond the travelled path for footmen, approaching the bridge from the Galt House, that then the plaintiff is not entitled to recover; provided the jury shall believe, at the time he received the injury complained of, he started from the Galt House to cross over the bridge.

4. If the jury shall believe from the evidence the facts set forth in the foregoing third prayer, that then the plaintiff is not entitled to recover, unless he exercised ordinary care and diligence to prevent the injury complained of.

5. If the jury shall believe from the evidence, that the plaintiff started from the Galt House to cross the river on the bridge, and walked over the tracks of the Winchester Rail Road, and also over and across the highway leading into and across the bridge, and to a point fifteen feet, or more, west of and beyond the bridge, or to any other point west of the same, and to a place where the injury complained of happened, on the grounds of the defendant used for railroad purposes, and not appertaining to the bridge, and not being or belonging to any part of the highway; and that the place where the injury happened, is not along the travelled path for footmen or other travellers approaching the bridge from the direction of the Galt House, that then the plaintiff is not entitled to recover.

6. If the jury believe the facts stated in the foregoing fifth prayer, that then the plaintiff is not entitled to recover, unless he exercised ordinary care and diligence to prevent the injury complained of. 7. If the jury shall believe the facts stated in the foregoing fifth prayer, and shall also further believe from the evidence, that the plaintiff, previous to the injury, had often crossed the bridge in going to and returning from Harper's Ferry, and was acquainted with the location and situation, and the ways over it, and the grounds and premises contiguous to and surrounding the bridge, and was admonished by defendant or its agent, on the night of, or just before, the accident, of the danger of crossing the bridge, that then he did not exercise that ordinary care and diligence which will entitle him to recover.

8. If the jury shall believe from the evidence, that the plaintiff, by his own negligence or want of care and caution, so far contributed to his misfortune; that but for such negligence or want of ordinary care and caution on his part, the misfortune and damage complained of would not have occurred, that then he is not entitled to recover.

9. If the jury shall believe from the evidence, that there was negligence on the part of the defendant; yet if they further believe that the plaintiff would have escaped the injury by the exercise of ordinary care and diligence on his part, that then he is not entitled to recover.

11. If the jury believe that the injury complained of occurred by reason of any degree of negligence on the part of the plaintiff, he is not entitled to recover, although there may have been concurrent negligence on the part of the defendant.

12. If the jury find that the plaintiff was intoxicated at the time he suffered the injury complained of in this cause, that the same is a circumstance to be considered by the jury upon the question of the due care to be exercised, required upon the part of the plaintiff in avoiding such injury, more or less strong, according to the degree of intoxication.

13. If the jury find that the plaintiff, by the use of ordinary care in passing on and along the highway connecting with the said bridge upon the Virginia shore, for the purpose of crossing the same to the Maryland shore, could have avoided such injury, then the plaintiff is not entitled to recover.

14. That if the jury find that there is no risk of danger or injury to any traveller using ordinary care in passing on and along the said highway connecting with the said bridge on the Virginia shore, for the purpose of crossing on the same to the Maryland shore, either by night or by day, by reason of there being no railing or other guards upon the wall at the...