Baltimore & O.R. Co. v. Fitzpatrick

• Decision Date: 12 January 1872
• Citation: 35 Md. 32
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. THOMAS J. FITZPATRICK, by his next Friend. THOMAS J. FITZPATRICK, by his next Friend, v. THE BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: Maryland Court of Appeals

35 Md. 32

THE BALTIMORE AND OHIO RAILROAD COMPANY v. THOMAS J. FITZPATRICK, by his next Friend.

THOMAS J. FITZPATRICK, by his next Friend, v. THE BALTIMORE AND OHIO RAILROAD COMPANY.

Court of Appeals of Maryland

Jan. 12, 1872

CROSS-APPEALS from the Court of Common Pleas.

Plaintiff's Exception: The plaintiff gave evidence, at the trial below, tending to show, that on the night of the 29th of November, 1870, between the hours of 8 and 9, the defendant had placed a line of cars, which it had been making up from 5 to 8 o'clock, P. M., extending down Howard street from above Wayne street, to a point below Barre street, so as to obstruct the crossings of said street at Barre and Wayne streets and the intermediate space between said streets, and that the plaintiff seeing an open space some five feet wide between said cars in front of his father's door, and hearing no signal of approaching danger, and seeing no person there, attempted to cross said street to his father's door through said open space while said cars were stationary, which was suddenly and violently closed by and through the careless management of a car under the control of the defendant's servants, whereby he had his jawbone fractured and his tongue mashed ??nd was otherwise greatly injured; and that said cars had been standing on Howard street more than one hour before said injury was occasioned; and that the plaintiff was thirteen years old in August, 1870; and further, that the wheels of the car by which the plaintiff was struck, were not fastened or chained in any way, although it was not connected with any other car, but stood by itself. The plaintiff then read in evidence sections 1, 4, 6 and 7, of Article 39 of Ordinances relating to railroads, Baltimore City Code of 1869, 571-573.

The defendant then offered evidence tending to prove, that on the evening of the accident, and immediately after the happening thereof, the cars were standing on Howard street, as represented on the plat exhibited; that the cars were in actual service at the time, by reason of the train being in process of making up, by bringing these cars together on Howard street and coupling them to form a train to go out, as soon as made up, from the city; that the wheels of said cars had been fastened, in accordance with the city ordinance while the train was thus being made up; and further, that the cars had not been there for one hour; and further, that there was no violation of any Ordinance of the city of Baltimore by the defendant or its agents, and that due care and diligence was exercised by the defendant's employees, and that while admitting the injury to the plaintiff, the defendant offered evidence tending to prove that it was altogether owing to his own want of care and diligence in attempting to pass between the cars through a narrow space between four and five feet wide, instead of a regular crossing all of which were left open by the defendant at the time of the accident.

And thereupon the plaintiff prayed the Court to instruct the jury as follows:

1. If the jury shall find from the evidence that the injuries to the plaintiff resulted directly from the want of ordinary care and caution on the part of the defendant's servants o?? any of them, then the plaintiff is entitled to recover provided the jury find that the accident causing his injurie?? could not have been avoided by the exercise of such care and caution by the plaintiff as ought, under all the circumstances, to have been reasonably expected from one of his age and intelligence.

2. If the jury shall find from the evidence, that on the evening of the 29th November 1870, the defendant placed a number of its cars on its railroad track in South Howard street, and left two of said cars standing after nightfall on said track, with sufficient space between them to allow the free and unobstructed passage of persons, and left the wheels of one of said cars unfastened while so standing; and if the jury shall further find, that there was a want of ordinary care and prudence on the part of the defendant in the way in which said cars, situated as aforesaid, were by it forced together and said space closed, and that such want of ordinary care and prudence directly caused the injuries complained of in this case, then the plaintiff is entitled to recover provided the jury find, under all the facts and circumstances in evidence, that the plaintiff did not contribute to such injuries by any want of ordinary care and prudence on his part.

3. If the jury find for the plaintiff, then, in estimating the damages, they are to consider the health and condition of the plaintiff before the injuries complained of, as compared with his present condition in consequence of the 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 business pursuits for which, in the absence of the said injuries, he would have been qualified; and also the physical and mental suffering to which he has been subjected by reason of the 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 suffered.

The Court (GAREY J.) rejected the first prayer and granted the second; the third was conceded. To the rejection of his first prayer the plaintiff excepted.

Defendant's Exception: The defendant offered the following prayers:

1. If the jury shall believe from the evidence that the boy Fitzpatrick was injured by attempting to pass between the cars of the defendant while the train was being made up, as testified to by the witness, and that such attempt was made at a place which was not a regular crossing, and was thereby injured, then the attempt to so pass between the cars was a want of ordinary care on his part, and the plaintiff cannot recover; and further, that the burden of proof is on the plaintiff to show that the accident occurred at a regular crossing of the street, and there being no proof offered by the plaintiff by which the jury can find that it did occur at such crossing, their verdict must be for the defendant.

2. If the jury shall believe from the evidence that the happening of the accident was caused by the want of ordinary care on the part of the person injured, then the plaintiff cannot recover, although they may find that the defendant was not at the time using ordinary care; provided, that the want of ordinary care on the part of the person injured, was the proximate cause of the injury; and that the attempt of the boy Fitzpatrick to pass between the cars of the defendant while the train was being made up, as testified to by the witnesses, constituted in itself a want of ordinary care on his part that was the proximate cause of the injury, and therefore the plaintiff cannot recover.

3. If the jury shall find from the evidence that the accident in question would have been avoided by the exercise of ordinary care and caution on the part of the injured person, the plaintiff cannot recover.

4. If the jury shall believe from the evidence, that at the time of the accident, some of the cars of the defendant were standing upon Howard street, while other cars were being brought from different sections of the city to be attached to those cars so standing upon Howard street, with the object of making up a train, and that openings were left between the cars at the regular crossings of said street, and that the boy Fitzpatrick was injured by attempting to pass between said cars at a place which was not a regular crossing of said street, then such attempt to pass through the train at a place not a regular crossing, was such a want of ordinary care on his part that the plaintiff cannot recover.

5. If the jury shall believe from the evidence, that at the time of the accident, the defendant's servants were engaged in making up a train of cars on Howard street, and that they took the precaution to leave open spaces between the cars at all the regular crossings of said street, and that the accident in question did not happen at a regular crossing, then the jury must find that the defendant was using ordinary care in the premises, and the plaintiff cannot recover.

6. If the jury shall believe from the evidence, that at the time of the accident testified to by the witnesses, the cars of the defendant, as testified to by the witness Righter, were being placed in procession in Howard street, between the hours of 5 and 9 P. M., with the purpose of being drawn from there and sent to their regular destination, and that the plaintiff was caught between two of them, then the said cars were in actual service, within the meaning of the Ordinance of the city of Baltimore, relating to "Cars," at page 571 of Baltimore City Code, and were not obliged to be fastened together, as provided in the said Ordinance; even though the said cars, or any of them, may have been standing on Howard street, without being fastened for a period of one hour, neither was the company obliged to leave the openings in the train provided for in the same Ordinance, at page 573 of said Code.

7. That there is no evidence in the case, should the jury find for the plaintiff, of such wanton and malicious or gross and outrageous conduct on the part of the defendant, or its agents, as would warrant punitive damages, and that actual damages is all the plaintiff can recover.

The third and seventh prayers were conceded--the Court rejected the others. Thereupon the defendant excepted to the rejection of its prayers, as also to the granting of the prayer of the plaintiff. Judgment was rendered for the plaintiff for $8,000 and costs. Both parties appealed.

The cause was argued before BARTOL, C.J., BRENT, ALVEY...