Baltimore & O. R. Co. v. State

• Decision Date: 18 June 1895
• Citation: 32 A. 201,81 Md. 371
• Parties: BALTIMORE & O. R. CO. v. STATE, TO USE OF CHAMBERS ET AL.
• Court: Maryland Court of Appeals

32 A. 201

81 Md. 371

BALTIMORE & O. R. CO. v. STATE, TO USE OF CHAMBERS ET AL.

Court of Appeals of Maryland

June 18, 1895

Appeal from circuit court, Frederick county.

Action by the state for use of Mary J. Chambers and others against the Baltimore & Ohio Railroad Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER ROBERTS, and PAGE, JJ.

John K Cowen, C. W. Ross, Benj. F. Reich, and John S. Newman, for appellant.

G. H Worthington and Wm. P. Maulsby, for appellees.

ROBERTS J.

This action was brought in the circuit court for Frederick county in the name of the state, as plaintiff, for the use of the widow and children of John W. Chambers, who was killed by what is alleged to have been the wrongful act, neglect, or default of the defendant corporation. There was a verdict for the plaintiff, and judgment thereon, from which the defendant has appealed. The accident happened at a station on the main line of the defendant's road, in Frederick county, known as East Brunswick. There are in the town of Brunswick two stations on said road. One is known as East Brunswick, and the other as West Brunswick. At about the hour of noon, on the 21st of April, 1894, the deceased, John W. Chambers, being at the West Brunswick station, remarked that, having been disappointed in seeing a party, he would go to Washington, D. C., and shortly thereafter boarded a local passenger train, No. 16, which carried him to the East Brunswick station, where he could obtain a ticket to Washington on an express train. As train No. 16 reached the west station, he jumped on it, between the tender of the engine and the first car. It is contended that he was at the time he got on the train somewhat under the influence of drink. He rode to the east station on the platform of the postal car, which was coupled to the tender of the engine. When he reached the east station he got off on a platform between the railroad tracks, and started in the direction of the depot. Other passengers were crossing at the same time, as well as some of the employés of the defendant. There is a double track in front of the station, used by passenger trains, and as the deceased was about to cross the intervening track, between the station and the train from which he had alighted, an express train running westerly came by, and struck and killed him. There is conflict of testimony both as to the speed at which the train was running, and as to ringing of the bell and the blowing of the whistle.

The first exception found in the record of this appeal arises upon the refusal of the court below to strike out the testimony of Mrs. Chambers, the widow, as to the earnings of her husband, she having testified that she had not seen or held any communication with him for a period of from two to three years prior to his death. We do not think, however, that the admission of this testimony furnishes any ground for reversal, as the objection to it was not timely, and the testimony of Lizzie Sykes, and of S. B. Barr, both of whom testified to the same effect, was admitted without objection. Hayes v. Wells, 34 Md. 512; Leffler v. Allard, 18 Md. 545; Coale v. Harrington, 7 Har. & J. 146.

The second and third exceptions relate to conversations which took place between the decedent and certain witnesses, in which he expressed his intention of going to Washington. Such declarations of the decedent, made at the very moment of time immediately preceding the act of the defendant company by which he lost his life, form part of the res gestae, and were properly admissible. In support of this view, Mr. Greenleaf, in his work on Evidence (volume 1, § 108), pointedly observes that: "The affairs of men consist of a complication of circumstances, so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and in its turn becomes the prolific parent of others; and each during its existence has its inseparable attributes and its kindred facts, materially affecting its character, and essential to be known in order to a right understanding of its nature. These surrounding circumstances, constituting parts of the res gestae, may always be shown to the jury, along with the principal fact; and their admissibility is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion, it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description." The plaintiff was entitled to this testimony, as having an important bearing upon the right of the decedent to be upon the defendant's property, and pass over a customary way to the ticket office of the defendant, for the purpose of purchasing a ticket over its road to Washington In this view, it becomes very immaterial how the decedent got from West Brunswick station to East Brunswick station, if when he got there he was rightfully on defendant's premises, and took the same course and traversed the same path usually taken by passengers and employés of the defendant from where No. 16 delivered its passengers to the ticket office, where passengers obtained their tickets for passage on the express train of the company to the city of Washington.

The chief question in this case, as stated in the appellant's brief, is: "Was Chambers at the time of his death a passenger of the appellant, and thereby entitled to all the safeguards the law throws around one in that position; or, on the other hand, was he a trespasser, or at most a licensee, to whom the appellant owed much less care and protection?" It is conceded to be the well-settled rule that a person is a passenger who enters upon depot grounds by the approaches furnished by the carrier. The fare does not have to be paid, nor the train entered, but the person must merely enter within the control of the carrier at the depot, through the usual channels of business, with the intention of becoming a passenger by either paying fare before or after entering the train. We have already adverted to this phase of the case, and will have occasion to make more particular reference to it when we come to the consideration of the prayers.

The fourth exception is taken to the ruling of the court below in permitting the timetable of the defendant in force on April 21, 1894, the day of the accident, to be offered in evidence. We fail to recognize the force of this objection, or to perceive wherein the defendant is injured by its admission. The other proof in the record on this subject is doubtless conflicting, but its effect is directly in the same line, and not materially variant therefrom. A part of the same exception is the objection to the admissibility of rule No 441 of the company, in force at the time of the accident. There is nothing in the record to show that this was a private rule for the guidance of the employés of the appellant, and not intended for the eye of the public, and no reason has been assigned why the rule should not have been open to public inspection, as it was a prudent and justly precautionary measure, beneficial alike to all parties concerned. If it be true that the rule was only intended for the servants of the company, it was not on this occasion observed by them; but if it had been a rule of the company previously complied with, it was notice, from which the public had a right to infer a continuance of the custom. Yet, without any rule upon the subject, it was negligence on the part of the company to run its train at a high rate of speed through a station where...