Baltimore & O.R. Co. v. Walsh

• Decision Date: 10 January 1923
• Docket Number: 68.
• Citation: 120 A. 715,142 Md. 230
• Parties: BALTIMORE & O. R. CO. v. WALSH.
• Court: Maryland Court of Appeals

120 A. 715

142 Md. 230

BALTIMORE & O. R. CO. v. WALSH.

No. 68.

Court of Appeals of Maryland

January 10, 1923

Appeal from Superior Court of Baltimore City; Robert F. Stanton Judge.

"To be officially reported."

Action by George Walsh against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, without new trial.

Duncan K. Brent, of Baltimore (Allen S. Bowie, of Baltimore, on the brief), for appellant.

William D. Macmillan, of Baltimore (Harold Tschudi, of Baltimore, on the brief), for appellee.

OFFUTT J.

This suit grew out of a collision between one of the appellant's locomotives and a small switching engine owned by the Union Shipbuilding Company and operated by its employee George Walsh, the appellee, on the appellant's tracks at Fairfield, Curtis Bay, on February 15, 1921. Walsh who was painfully and seriously injured in the collision applied for and was awarded compensation under the Workmen's Compensation Act, which was paid by his employer.

Walsh contended that the collision was due to the appellant's negligence, and on December 23, 1921, in the superior court of Baltimore City, he brought this action, which in regular course came on for trial, and the verdict and judgment in that trial being against the appellant, this appeal was taken.

There are three exceptions in the record. Two of these relate to the admissibility of evidence and are of minor consequence. The other relates to the court's rulings on the prayers and presents the substantial question in the case, which is whether, under the pleadings, the appellee was entitled to recover at all upon the evidence in this case, and the consideration of that question involves a review of the pleadings, the prayers, and the evidence.

The declaration which was filed by Walsh for his own benefit and that of his employer contains two counts. In the first count the negligent act complained of is said to be this: That while the plaintiff in operating the Union Shipbuilding Company's locomotive "was proceeding" to pass along the tracks of the defendant where they connect with the tracks of the Union Shipbuilding Company, and while "the fireman or brakeman of the plaintiff's locomotive was in the act of making the necessary switch connections for the locomotive operated by the plaintiff as aforesaid, a locomotive engine owned by the defendant was so negligently carelessly and unskillfully operated over and along the tracks of the said defendant, by its agent and servants in the course of their employment, as to run onto and against the locomotive operated by the plaintiff as aforesaid, with great force and causing the plaintiff to be thrown from his seat in said locomotive to the ground." In the second count, the plaintiff, after charging the negligence referred to in the first count, added this:

"And that at the time of the accident herein referred to the defendant, its agents or servants, saw, or by the exercise of ordinary care could have seen, the locomotive operated by the plaintiff as aforesaid in the position it was at that time, and could have avoided this accident by the exercise of ordinary care and skill in the operation of said locomotive; but notwithstanding that, the defendant's locomotive, operated by its agents and servants as aforesaid, collided with the locomotive in which the plaintiff was riding, causing the plaintiff to be thrown from his seat in said locomotive to the ground."

To this declaration the general issue plea was filed and issue joined thereon.

At the conclusion of the whole case the plaintiff offered one prayer, the usual damage prayer, which was granted, and the defendant nine prayers, of which all were granted but the first, second, and third, which were refused. The three rejected prayers were intended to raise these questions: (1) Was the evidence in the case legally sufficient to allow the plaintiff to recover; (2) was it legally sufficient to allow him to recover under the pleadings; and (3) was he barred by any negligence of his own contributing to the accident? As these questions involve a consideration of the force and the effect of all of the evidence in the case, it will be necessary to review that evidence in some detail.

The appellant maintained and operated two tracks at the place where the accident occurred. The Union Shipbuilding Company operated and maintained several sidings adjacent to the appellant's tracks and physically connected with them by switches. In going from one of these sidings to another, the locomotives of the shipbuilding company necessarily used the main tracks of the appellant because, while they were all connected with those tracks, they had no other connection with each other.

Walsh was a locomotive engineer, and his duty was to shift freight from one siding to another by means of the shipbuilding company's locomotive which he operated, and in the course of this work he would go on the main tracks of the Baltimore & Ohio Railroad and switch off onto one or another of these sidings as often as half a dozen or more times a day, and the railroad company knew that he used the Baltimore & Ohio Railroad tracks in that way.

On the occasion of the accident he was operating his engine on one of the switches known as the "Warehouse switch." The day was clear, and the engine was running backwards light, and there were on it at the time William Hutchins and Victor Toutant. This siding which runs from southwest to northeast formed a curving tangent to the railroad company's tracks which run nearly east and west, and the space between the two was entirely clear and unobstructed. Toutant was on the right side of the engine when facing in the direction in which it was running, and Bill Hutchins, the fireman, was on the left side of the steps on the back of the engine. Walsh was taking the engine over the siding to the Baltimore & Ohio main tracks, intending to take it along those tracks to another siding of the shipbuilding company, and the collision occurred, apparently just as his engine reached the Baltimore & Ohio Railroad tracks. The engine had not gone through the switch, but its overhang projected partly over the main track and the appellant's engine passing along the track at that time "side-swiped it."

George Walsh, the plaintiff, in describing the accident said:

"A. When I got to the switch or near about the switch, Bill Hutchins jumped off to throw the switch, and I almost come to a standstill, and I heard a little noise, and I looked around, and the thing was on me and smashed into me, the Baltimore & Ohio engine. * * * As soon as I seen it had my engine in back motion, I threw the reverse bar in the forward motion and tried to get out of the way when I seen it coming on me, but before I could get out of the way it struck me, knocking me out of the cab to the ground. That the engine on which he was riding had the bumper torn under it, and that after the accident it went down the track into the shipyard; that he did not open the throttle, but he did put the bar in forward motion; that he says the blow from the Baltimore & Ohio engine opened the throttle, because the throttle is always shut, and when the blow came it must have opened it. * * * When Bill Hutchins jumped off to throw the switch, I heard the noise, and I looked around, and they were there right on me; that is when I first noticed him coming from the cross-over switch, from the track they were on, to the track I was on, and sideswiped me."

He further testified that the engineer on the Baltimore & Ohio engine did not blow any whistle or give any other signal. On cross-examination, after testifying that when the collision occurred his engine was partly on "the main track of the Baltimore & Ohio, and that Hutchins had got down to throw the switch but had no opportunity to do it before the crash came, and that the switch was set against him, that it was necessary for Hutchins to change the switch before his engine could get on the main tracks, that it would not derail the engine to go through a closed switch, but would break the switch, and that he did not certainly know whether Hutchins had thrown the switch when the crash came, he gave this testimony:

"Q. You see this point; there is a switch and there is another; it is full of switches in there; here is the cross-over; here is the main track? A. Your cross-over switch was wrong; it was open for the Baltimore & Ohio man to come across. Q. It was wrong for you? It was set for the Baltimore & Ohio and not for you? A. Yes, sir."

William J. Hutchins, the fireman on the engine which Walsh was driving, testified that he first saw the Baltimore & Ohio engine as he was getting down to throw the switch, and that it was then about six feet away, and that when he saw it he ran to get out of the way; that "he was standing on the left side of the engine backing out and could see down the Prudential Company's siding of the Baltimore & Ohio Railroad Company tracks about 300 yards; that he was facing in the direction in which he was going; that the Prudential Oil siding would be to his left; that in order to get on the main track of the Baltimore & Ohio it was necessary to turn a switch; that he did not have time to turn the switch before the accident happened; that the Union Shipbuilding Company's locomotive was not ten feet away from the switch when the accident happened." On cross-examination he testified that coming down the warehouse siding he was on the step of the left-hand side of the engine backing out, on the southern side of the track; that he stepped off just as the engine on which he was riding came to a stop to throw the switch which was set against that engine. On redirect examination he testified that he did not look over to the...