Baltimore & O.R. Co. v. State

• Decision Date: 26 January 1871
• Citation: 33 Md. 542
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. THE STATE OF MARYLAND, use of Bridget E. Trainor, William H. Trainor, and Others.
• Court: Maryland Court of Appeals

33 Md. 542

THE BALTIMORE AND OHIO RAILROAD COMPANY v. THE STATE OF MARYLAND, use of Bridget E. Trainor, William H. Trainor, and Others.

Court of Appeals of Maryland

Jan. 26, 1871

Appeal from the Court of Common Pleas of Baltimore City.

This was an action against the appellant, brought in the name of the State for the use of the widow and children of John Trainor, deceased, to recover damages for his death. The deceased was employed as a spiker, by the appellant. He was paid at the rate of a dollar and fifty cents a day, payable at the end of each month, less any time he might have lost during the month: he was liable to be discharged at any time on which event he would be paid up to the time of his discharge. His business was to go twice a day over his beat which extended from the four-mile house on the Baltimore and Ohio Rail Road, to the nine-mile stone near the Relay House to see that the track was in order.

On the afternoon of the 14th of July, 1868, about six o'clock Trainor, having completed his work, was walking on the rail road track from the Relay House in the direction of Elkridge Landing, where he lived; when very near the Thomas viaduct which crosses the Patapsco river about a hundred yards beyond the Relay House, and just before reaching what is known as the cattle guard--a deep trench at the beginning of the viaduct, to prevent cattle going thereon--he was struck by a train coming from Baltimore and going in the direction of Washington, knocked down and so severely injured that he died the next day. The train which killed Trainor was an extra train sent out from Baltimore by the agents of the appellant, to bring back a pic-nic party from some point on the Washington road.

Exception.--The plaintiff offered the following prayers, which the court granted:

1st. If the jury find from the evidence, that on or about the 14th of July, 1868, John Trainor was killed by the locomotive and cars of the defendant while operated by its agents on its road, and that the equitable plaintiffs are related to him in manner as set forth in the pleadings herein, and that the said killing resulted directly from the want of ordinary care and prudence on the part of the agents of the defendant, and not from the want of ordinary care and prudence of the deceased, directly contributing to the accident, that then the plaintiff is entitled to a verdict, unless at the time of such killing, the jury should find that the said Trainor was in the employment of said defendant.

2nd. Even if the jury believe that the said Trainor was guilty of the want of ordinary care and prudence in walking on the track of the defendant, under the circumstances testified to before them; yet if the jury further find, that if the agents of the defendants had used, in and about the running of the train that injured him, ordinary prudence and care in giving reasonable and usual signals of its approach, and in keeping a reasonable look-out, that the 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.

3rd. 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, Trainor, 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 consequence of the death of the said Trainor; 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 defendant offered the following prayers:

1st. If the jury believe from the evidence that the decedent. Trainor, was an employee of the defendant at the time of the injury complained of, and that he was injured by the negligence and carelessness of the other employees of the defendant; yet, the plaintiffs are not entitled to recover, unless they shall satisfy the jury by evidence that the defendant did not use reasonable care in procuring, as co-employees of the decedent, faithful and competent persons in their respective employments, and in procuring for its operations sound machinery upon the train causing the accident.

This prayer the court refused as offered, but granted, after amendment, by inserting after the word "operations," "sound machinery of suitable construction adapted for the train causing the accident."

2nd. If the jury believe from the evidence that John Trainor was employed, and had been for months previously, as a spiker upon the road by the defendant; that the terms of employment were, that he was to go over his beat twice every day, and that it was for no definite period, but to continue until discharged by the company, which the company was at liberty to do at any time, and that the said Trainor was paid every month for so many days, only as he was actually employed, and was liable to be called on for extra work, with an allowance of extra pay therefor; and if the jury shall believe that on the day of the injury to him, he had performed his regular duty, and had not been discharged by the company at the time of said injury, and had left work but a short time before said injury, then the said Trainor, at the time of said injury, was an employee of the defendant within the meaning of the first prayer, though the jury may believe, that at the time of the injury, he had left his work and was going elsewhere on his private business.

This prayer was rejected.

3rd. If the jury believe from the evidence that the decedent, John Trainor, was on the railway track of the defendant, and on or near the cow-break, at the entrance of the viaduct of the defendant, at the time of the accident complained of, and that he was not a passenger on the train; and shall further believe that the company had given public notice, set up at the said viaduct, warning persons not to cross it, then the defendant is not liable in this action, though its agents might, by extraordinary care, have avoided the injury, if they shall believe that it was the result of accident, and not of wanton purpose on the part of the defendant or its agents; even though the jury may believe further that he was not an employee of the company at the time of the accident.

Rejected as offered, but granted with the following addition: "Provided the jury should find that, by the exercise of ordinary care and prudence on the part of the defendant's agents, the accident could not have been avoided."

4th. That, so far as relates to the decedent, John Trainor, the defendant, in the use of its train was only bound to use such diligence and care as prudent and discreet persons would use and exercise on such occasions; and if, owing to the absence of such diligence and care, John Trainor was injured, he is still not entitled to recover, if he contributed to bring the injury on himself by his own negligence and want of reasonable care, even though the jury may believe he was not an employee of the defendant at the time of the accident.

Rejected as offered, but granted with the following addition: "Provided that such negligence and want of care by decedent could not have been avoided by the use of ordinary care on the part of the agents of the defendant."

5th. If the jury believe from the evidence, that the defendant was in the ordinary use of its railway and trains; that by the usual signal of its whistle before reaching the Relay station, it gave notice that the train was bound upon the Washington Branch of its road; that said whistle was within the range of ordinary hearing by persons at the viaduct, and was well known to employees of the company, of whom decedent was one; that the train was proceeding at an ordinary speed when the injury occurred; and shall further believe that the agents of the company on the train did not see the decedent on the track, then they must find for the defendant, if they further believe that the said decedent was on or near the cow-break at the entrance of the viaduct, and on the track upon which a train from Baltimore would pass to Washington, and might, by reasonable caution and care, have avoided the train and prevented the accident.

This prayer the court rejected as offered, but granted, after amendment, by inserting after words "decedent on the track," "and by the use of ordinary care and prudence could not have seen him there in time to have avoided the accident."

6th. If the jury shall believe from the evidence, that at the time of the happening of the accident, the man Trainor was an employee in the service of the defendant, then the plaintiff is not entitled to recover in this action, even though the jury shall believe that said Trainor came to his death through the negligence of one or more of the employees upon the train causing the accident, unless the jury shall also believe from the evidence, that in selecting the employees or servants through whose negligence the accident occurred, the defendant did not use reasonable care in procuring for its operations sound machinery and faithful and competent employees; and the plaintiff has offered no evidence from which the jury might find that the defendant did not use such reasonable care.

This prayer the court rejected.

7th. If the jury believe from the evidence that the company had put up in legible characters the following notice at the entrance of the viaduct: "All persons are hereby warned not to walk upon or over the viaduct. Any such trespass will greatly endanger their lives. The width of the roadway admits of no foot-path, and both tracks are...