Baltimore & O.R. Co. v. Ritchie

• Decision Date: 30 June 1869
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. JOHN RITCHIE and Albert Ritchie, Executors of Albert Ritchie.
• Court: Maryland Court of Appeals

31 Md. 191

THE BALTIMORE AND OHIO RAILROAD COMPANY v. JOHN RITCHIE and Albert Ritchie, Executors of Albert Ritchie.

Court of Appeals of Maryland

June 30, 1869

Appeal from the Circuit Court for Frederick County.

This action was brought against the appellant by Albert Ritchie the testator of the appellees, to recover damages for injury to his person and property. From the narr. it would appear that the plaintiff was crossing, in his buggy, on the 1st of January, 1857, the bridge erected by the defendants over their road, at its intersection with the Frederick and Washington Turnpike road, when the horse, becoming alarmed at the cars and engines, ran off, injuring himself and the vehicle.

The narr. charged, that it was the duty of the defendants to erect and keep the bridge in such manner that horses should not be frightened in crossing it; that it was their duty to place safeguards on and about the bridge to prevent horses being frightened; that they did not so erect and keep the bridge; that they placed no safeguards there that in consequence the horse of the plaintiff took fright and ran away, and the injury happened that was complained of. To this action the defendants appeared at February Term 1858.

After the filing of the narr. the plaintiff died, and his executors, the appellees, suggested his death, and the case was continued by consent till October Term, 1859, when the defendants pleaded the death of the appellees' testator in abatement, and the appellees moved to strike out the plea because filed after the rule day; and the court struck it out accordingly.

Whereupon the defendants moved for a rule to show cause why the appearance of the appellees should not be stricken out.

1. Because if, as alleged, the action was a personal one, it died with the original plaintiff, and his executors could have no right to institute a suit.

2. Because the action having been brought by the deceased in his lifetime, and dying with him, there was no action to which any one could appear for him after his death.

The appellees appearing to show cause against the rule, moved to have it dismissed, because--1st. It was laid after the fourth term after the suggestion of the death of the original plaintiff; and 2d. Because his death did not abate the suit.

The court sustaining the motion the defendants demurred.

The demurrer raised the question as to the defendants' obligation to erect and keep the bridge in such manner that horses should not be frightened in crossing it, and to place safeguards to prevent horses being frightened. The demurrer further held the declaration to be bad, because it did not charge the defendants with any unreasonable use of their engines, etc., and again, because it joined two distinct causes of action--injury to person and injury to property.

On joinder in demurrer, the court overruled it.

The defendants then pleaded--

1st. Not guilty of negligence. 2d. That it was not its duty to erect and keep the bridge and employ safeguards as charged in the narr. 3d. That the facts alleged in the narr. were not true. 4th. That the defendants performed all their duties, and that the appellees' testator was not damnified by any failure in this particular.

The appellees asked the court to strike out the first, second and fourth pleas, because they tended to embarrass, prejudice and delay the fair trial of the case; and the same were stricken out by the court.

This was the condition of the case at October Term, 1859; and a jury being then sworn, the appellees prayed leave to amend; a juror was withdrawn, and the case was continued.

A succession of continuances then took place, and the case became active again only at October Term, 1865.

In the meantime the war had taken place, and Bradley T. Johnson Esq., the defendant's counsel, had left the State and joined the Confederates. There was then a rule laid on the defendants to employ new counsel, and a continuance to October Term, 1866.

The defendants did not respond to the rule, and judgment by default was rendered for the appellees; and there was an inquisition, at which new counsel appeared on behalf of the defendant, resulting in a verdict of $1,434.33 and costs, whereupon the defendant took this appeal.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ALVEY, JJ.

J. H. B. Latrobe, for the appellant.

Albert Ritchie, for the appellee.

Grason J., delivered the opinion of the court.

This cause being at issue in the court below, and the attorney of the appellant having left the State, a rule was laid upon it to employ new counsel, or that judgment would be rendered against it by default. At the October Term, 1866, one year after the above rule was laid, no counsel having appeared, judgment by default was rendered against the appellant "on the rule to employ new counsel." At the October Term, 1867, an inquisition was had, and the damages assessed, at which time an attorney appeared for the appellant, and participated in the proceedings.

The first question to be considered is, whether a court can legally lay such a rule, or enter a judgment by default against a defendant who has failed to comply with it when the case is at issue. It was contended by the counsel for the appellee that the court had the power so to do, and relied upon Darnall v. Harrison, 1 H. & J. 137, in the General Court, as authority for the practice. In that case the rule to employ new counsel not having been complied with and an affidavit having been filed showing that a copy of the rule had been served on the defendant, the plaintiff, at the same term at which the rule was laid moved the court for judgment or trial, and it was " ruled accordingly." The motion being for judgment, or trial, it does not appear that the plaintiff would not have been required to proceed ex parte with the trial, instead of a judgment by default being entered; for the rule was not enforced, as an appearance was entered for the defendant and a judgment confessed. That case is therefore no authority for the practice contended for by the appellees' counsel. It was further urged that this court must intend that, in laying...