Bannon v. Baltimore & O.R. Co.

• Decision Date: 28 February 1866
• Citation: 24 Md. 108
• Parties: PATRICK BANNON, By His Next Friend, James Coughlan v. THE BALTIMORE & OHIO RAIL ROAD COMPANY; the Baltimore & Ohio Rail Road Company v. Patrick Bannon. by His Next Friend, James Coughlan.
• Court: Maryland Court of Appeals

24 Md. 108

PATRICK BANNON, By His Next Friend, James Coughlan v. THE BALTIMORE & OHIO RAIL ROAD COMPANY;

the Baltimore & Ohio Rail Road Company v. Patrick Bannon. by His Next Friend, James Coughlan.

Court of Appeals of Maryland

February 28, 1866

Appeal from the Superior Court of Baltimore City:

This suit was brought to the September Term of the Superior Court of Baltimore City, 1861, by James Coughlan, the next friend of Patrick Bannon, a minor, about seven years of age, to recover $3,000 damages for injuries sustained by the latter through the wrongful act, neglect or default of the Baltimore & Ohio Rail Road Company or its agents, on the 13th of October, 1860. The declaration contains three counts, to which the defendants pleaded "not guilty."

First Exception.--At the trial of the cause the plaintiff to maintain issue on his part joined, proved that on the 13th of October, 1860, being then about the age of seven years, he was injured by the cars of the defendants, and his right hand permanently maimed by being crushed by the passage of the wheels of said cars over it, cutting off the forefinger, and rendering him otherwise unfit for manual or mechanical labor. The plaintiff further proved that the said injury occurred near the front of his mother's house, which is located with a number of others, on Locust Point, within a "Y" on the Locust Point Branch of said road, and then, for the purpose of showing negligence on the part of the company's agent, the plaintiff offered to prove that it was the daily practice of said agents, for many months before the happening of said injury, to back by the power of a locomotive large trains of iron coal cars of from forty to fifty cars, around a curve in a deep cut, by which backing a portion of the train of cars came around said curve and passed in front of the house of the plaintiff, and over the place where said injury happened; and the plaintiff accompanied said offer with further evidence to show that during the said backing of said cars as aforesaid, it was the daily practice of the employees and agents of said company as aforesaid, to remain on or near the locomotive while it was engaged in backing the train of cars, and that said employees and agents could not from their position see the said road or any obstruction thereon, in the rear of the train, as it was so backing, and that no lookout or brakesman was ever stationed on the hindmost of said cars, as they had been daily backed around said curve to the point where said injury occurred; but the court rejected said offered proof being of the opinion that the evidence must be confined to the mode in which said cars were managed at the time of the occurrence of the injury as complained of, and thereupon the plaintiff excepted.

Second Exception.--After the evidence stated in the foregoing bill of exceptions, made a part hereof, the plaintiff, to support the issue on his part, offered in evidence by Nunaven, that he was a police officer of the City of Baltimore, on duty at Locust Point on the 13th of October, in the year 1860; that he knew the plaintiff, and that his mother, Mrs. Coughlan lived at the corner of Towson and Marriott streets, where she kept a grocery; that the Baltimore & Ohio Rail Road passed from Nicholson street by a semi-circular track into Marriott street, close by the house of Mrs. Coughlan, forming what is called a "Y;" that the track passes through a cut between Towson and Haubert streets, in Marriott street, which latter street is not paved or used as a carriage road; that the next street to Towson street is Cooksie street, and that there are houses on Towson street within the "Y" which would prevent an engineman at the corner of Towson and Nicholson streets from seeing the end of the train if it extended past Mrs. Coughlan's house and store up Marriott street; that the cars of the defendants were at times left standing across Towson street, in the way of persons passing from Mrs. Coughlan's and other houses within the "Y" to a school house, and to a spring beyond the school house, and that he had notified the agents of the defendants to remove them; that hearing on the 13th October that an accident had happened in Marriott street he went to the spot, which was near the intersection of Cooksie and Marriott streets, and saw where a person had been dragged some distance, with marks of blood upon the ground and rails. The plaintiff further proved by Joshua Wright that he was on the spot immediately after the accident happened, and saw where the plaintiff lay, some twenty-five yards from the end of the train; that his brother had been killed and dragged that distance, and that there were no agents of the defendants about at the time. Witness aided in separating the cars so as to extricate the body of the boy that was killed.

Testimony to the same effect was given by Michael Noonan and Davis.

The plaintiff further proved by Dr. Inloes that he was the physician who attended the plaintiff and removed the forefinger of the right hand and dressed the second and third fingers, which were mashed and will remain permanently deformed; that there is no grasp in the hand, the power being lost in consequence of the accident; that the plaintiff was confined to bed three or four weeks, and there was a tendency to lockjaw, which required medical control, and that no other injury was done to the hand beyond that described; and although the remaining fingers would improve by use, they were in the opinion of witness permanently injured, and the plaintiff incapacitated from the free use of them for life.

The defendants proved by Henry Linn, a competent witness, that he saw the accident when it occurred; that the plaintiff, with his two brothers, were playing on the common near the the intersection of Marriott and Cooksie streets, when the end of the train came backing round Mrs. Coughlan's corner into Marriott street; that the boys at once left their play and ran to the cars and attempted to get on them; that there were two on the track in front of the end car, who got on by holding with their hands on the bumper, with their feet on the break-bar; that the little one, the plaintiff, was trying to get off or fell off, and knocked the other off, who was killed; that witness did not see the plaintiff after the accident, his attention being attracted to the boy that was killed. On cross-examination witness said that he was at the time he saw the little boys playing on the common some fifteen or twenty yards from them, and in company with two other boys larger than himself, to whom he said, "Boys let us take a ride." Whether the three little boys of Mrs. Coughlan heard him or not he could not swear. Witness saw no agents of the company about at the time of the accident. From the end of the train where it happened he could not see the engine. He did not hear a whistle blown or a bell rung. Was certain that both the boys, the one that was killed and the plaintiff, jumped on the cars.

The defendants further proved by Mr. Stickes, an employee of the defendants, that he knew the plaintiff and his two brothers; that he had often seen them getting on the cars, and had often warned them off, and told them the risk they ran; that witness had also told their mother of their conduct in this respect, and had seen her whip them for it, but she said she could not prevent it.

Parker, brakesman of the train in question, a witness for the defendants, proved that he had driven the three children of Mrs. Coughlan from the cars, and had threatened to whip them, and had also told their grandmother of their conduct; that this was prior to the 13th October, and on frequent occasions, certainly on more than one occasion; and that at the time of the accident the speed of the train did not exceed two or two and a half miles an hour. On cross-examination, the witness described the duties of the agents connected with the train,--and stated, that there was no one at the end of the train at the time of the accident, and that it was no one's business to be there; that the signal for backing the train, three blasts of the whistle, had been given before the train was backed on this particular occasion; that there was no bell rung, and there was none on the engine to ring; and that the whistles were signals to the persons connected with the train.

Ennes Toby, a witness for the defendants, proved that he was the engineman on the occasion of the accident; that the engine was a regulating engine, employed in the making up of trains at Locust Point, for another engine to take away; that he was making up a train at this time, and adding the last cars; that, on previous occasions, he had often seen the three boys getting on the cars when in motion, as well as in rest; and that he has driven them from one part of the train, when they would run and get on another part.

On cross-examination this witness stated, that he always watched the crossing in front of Coughlan's house, but that after the end of the train had passed it, he knew there was no crossing until the next paved street was reached, and anticipated no accident; that from where his engine was on this occasion he could not see the end of the train, where the accident happened, nor did he know of the accident for half an hour afterwards; that the speed of the train in backing at this time was very slow, and it could not have been otherwise, as there were fifty empty coal cars to be moved, and the grade up Marriott street was an ascending one, and it was as much as the engine could do to push the train backwards; that it was going so slowly that any one, however young, could have got out of the way. The witness further proved, that the whistle was blown three times as a signal for backing, before the...