Baltimore & O.R. Co. v. State

• Decision Date: 20 June 1872
• Citation: 36 Md. 366
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. THE STATE OF MARYLAND, use of HANNAH DOUGHERTY, and others.
• Court: Maryland Court of Appeals

36 Md. 366

THE BALTIMORE AND OHIO RAILROAD COMPANY v. THE STATE OF MARYLAND, use of HANNAH DOUGHERTY, and others.

Court of Appeals of Maryland

June 20, 1872

APPEAL from the Circuit Court for Howard County.

This was an action brought against the appellant by the State, for the use of the widow and children of James Dougherty, to recover damages for his death. The deceased, on Sunday night the 18th of October, 1868, while walking on the track of the Baltimore and Ohio Railroad, at Sykesville, was run over by an engine in the use of the agents of the railroad company and in consequence of the injuries he then sustained, died on the following Tuesday. At the date of the accident, the county road, which runs between a high bluff on the north and the railroad on the south, through the village, was covered for several hundred yards with gravel, which the appellant had carted from the Howard county side of Sykesville and dumped in the county road, while engaged in repairing damages to the railroad, caused by a recent flood. At the time of the accident, the deceased, with one John Sullivan, was walking along the north track of the railroad having a lighted lantern in his hand. When about a hundred yards from where the county road crossed the railroad Sullivan heard the noise of an engine and remarked a train was coming; the deceased replied, "I seen a train running up and down the other track this evening." Sullivan stepped off the track and the engine shot by. The head light of the engine was not lighted. After the engine passed, Sullivan turned and saw the deceased lying on the pile of gravel on the side of the county road, his feet down on the rails. The engine was one which the appellant's agents had been using with the ballast train at Sykesville. On the evening of the accident a watchman in the employ of the appellant, finding the engine required water, with the fireman, the engineer being absent, got on the engine and backed it eastwardly to the main track, and then back to the water station; then started it along the north track of the main line, to run it up and down that track, for the purpose of pumping water into the boiler. While thus running, between eight and ten miles an hour, the engine struck the deceased. The appellant offered evidence to show that on the day of the accident the county road was in a passible condition.

Exception: The plaintiff offered the four following prayers:

1st. If the jury shall find from the evidence in the case that Dougherty was killed by the engine of the defendant whilst being driven by its agents, and that the said killing was occasioned by the want of ordinary care on the part of the said agents, then the plaintiff is entitled to recover, unless the jury shall find that Dougherty contributed to the accident by the want of ordinary care on his part; and in considering the want of ordinary care on his part, the jury are entitled to consider the condition, at the time of the accident, of the county road alongside of the railroad, and whether, under all the evidence in the case, it was a want of ordinary care in him to have been on the track of the railroad at the time of the accident.

2d. Even though the jury believe that James Dougherty was guilty of a want of ordinary care and prudence in walking on the track of the defendant, under the circumstances testified to before them; yet, if they further find, that if the agents of the defendant had used, in and about the running of the train which injured him, ordinary prudence and care, in giving reasonable and usual signals of its approach, and in keeping a reasonable lookout, that said accident would not have occurred, then the plaintiff is entitled to recover; provided they find the other facts set out in the first instruction of the plaintiff.

3d. That in considering the question of ordinary care and prudence on the part of the deceased, James Dougherty, 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. Even if the jury shall find that the deceased, James Dougherty, was guilty of a want of ordinary care and prudence, tending, in a remote degree, to cause the injury which resulted in his death; yet, if they shall further find that there was negligence on the part of the defendant's agents, which was the proximate and immediate cause of the injury which caused the death of James Dougherty, the action is maintainable notwithstanding the deceased may not have been entirely without fault in the first instance.

And the defendant offered seven prayers, as follows:

1st. That the burden of proof is upon the plaintiff to show that the accident complained of was altogether owing to the negligence or want of care and skill on the part of the defendant or its agents; and if the jury shall find from the evidence in the cause that the accident which caused the death of said Dougherty, was in any degree owing to the want of due care and caution, at the time of accident, on the part of said Dougherty, then the plaintiff is not entitled to recover in this action, and the jury must find a verdict for the defendant.

2d. If the jury shall believe from the evidence that the deceased, Dougherty, was walking upon the track of the defendant's railroad, away from any public crossing, in company with the witness, Sullivan, and that before the happening of the accident complained of, the said Sullivan heard the noise of the engine, and told Dougherty that it was coming, and that Dougherty answered, "I seen a train running up and down the other track this evening," and remained upon the track when Sullivan stepped off the track and escaped from all injury; and if the jury shall further believe from the evidence that said deceased, at the time of such warning from his companion, might also have stepped off the track, and would so have escaped injury, then his remaining upon the track, after such warning, was such a want of due care and caution on his part as to debar the equitable plaintiffs in this case from recovery, even if the jury shall further find that there was negligence on the part of the defendant's agents.

3d. Though the jury may believe there was carelessness on the part of the defendant, yet, if there was at the same time such carelessness on the part of the decedent as proximately caused the accident, then the plaintiff is not entitled to recover, and the failure of the decedent to get off the track after notice was brought to him by the warning of the witness Sullivan, was such negligence as proximately caused the injury.

4th. If the jury believe that the decedent was on the defendant's road, not at a public crossing, and that he was not there by any necessity put upon him by the defendant's act, in the alleged obstruction of the county road, then his being there is conclusive evidence of contributory negligence on his part, and the equitable plaintiffs cannot recover in this action.

5th. If the jury shall believe from the evidence, that at the time of the happening of the accident, the county road, running alongside of the railroad track, was in such a condition that the man Dougherty could have passed along it without any danger to himself, and that if he had used said road instead of walking down the track, the accident would not have happened, then the fact of his walking on said track was the proximate cause of the accident, and the plaintiff cannot recover.

6th. That should the jury find for the plaintiff, the amount of damages must be limited to the actual pecuniary loss which the equtable plaintiffs have sustained by the accident.

7th. If, under the instructions of the Court, the jury should find for the plaintiff, then, in assessing the damages, they are to estimate the reasonable probabilities of the life of the deceased, Dougherty, and give 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 consequences of the death of the said Dougherty; that for his children these prospective damages may be estimated to their majority, and as to the widow to such probability of life as the jury may find reasonable under the circumstances.

The first prayer of the plaintiff was conceded by the defendant, and the first and seventh prayers of the defendant were conceded by the plaintiff.

The Court (HAYDEN and HAMMOND, J.) then granted the second, third and fourth prayers of the plaintiff, and rejected the second, third, fourth, fifth and sixth prayers of the defendant, and gave the following instructions to the jury, in lieu of the defendant's second prayer:

If the jury shall believe from the evidence that the deceased Dougherty, was walking on the track of the defendant's railroad, away from any public crossing, in company with the witness, Sullivan, and that before the happening of the accident complained of, the said Sullivan heard the noise of the engine and told Dougherty that it was coming, and that Dougherty answered, "I seen a train running up and down the other track this evening;" and if the jury shall further believe from the evidence, that said deceased, at the time of such warning from his companion, could have left the track of said railroad, and under all the circumstances and surroundings of his situation, as shown by the evidence, he had sufficient time to do so, and that he would, by so doing, have escaped injury, then his remaining upon the track of the railroad, after such warning, was such a want of due care and caution on his part as to debar the equitable plaintiffs in this case from recovery, even if the jury shall further find that there was negligence on the...