Kean v. Baltimore & O.R. Co.

• Citation: 61 Md. 154
• Parties: DANIEL KEAN v. THE BALTIMORE AND OHIO RAILROAD COMPANY.
• Decision Date: 09 January 1884
• Court: Maryland Court of Appeals

61 Md. 154

DANIEL KEAN v. THE BALTIMORE AND OHIO RAILROAD COMPANY.

Court of Appeals of Maryland

January 9, 1884

Appeal from the Circuit Court for Frederick County.

This action was originally instituted in the Circuit Court for Allegany County, and was thence removed, at the suggestion of the defendant, to the Circuit Court for Frederick County where it was tried. The appellant sought to recover for an injury which he sustained through the alleged negligence of the appellee, in being run over by its cars on the night of the 27th of July, 1879, while he was in the act of crossing the tracks of the defendant at the point where they intersect Williams street in the City of Cumberland.

Plaintiff's Exception.--The plaintiff offered the three following prayers:

1. That if the jury find from the evidence that the defendant was, at the time of the happening of the alleged injury of which the plaintiff complains, the owner of a railroad, with several tracks running through the City of Cumberland, and across the streets and thoroughfares thereof, and was engaged in moving trains thereon propelled by steam, then in the management of said trains the defendant was bound to use such care and caution to prevent injury to persons traveling along said streets where they are crossed by said tracks as prudent and discreet persons would have used and exercised under like circumstances; and that if they find from the evidence that the plaintiff, on the night of the 27th of July, 1879, while crossing the railroad of the defendant on Williams street, in said city, was run over by the cars of the defendant and injured, as stated in the testimony of the witnesses, and that such injury was occasioned by the negligence of the defendant, or its agents in charge of said cars, and that by the exercise of ordinary care and caution by the defendant or its agents, the accident occasioning such injury could have been avoided, the plaintiff is entitled to recover notwithstanding they may find from the evidence that the plaintiff did not use ordinary care and caution on his part provided, they further find, that such want of care on the plaintiff's part was not the direct cause of the accident; and further, that if the jury find for the plaintiff they may consider the character of the injuries received by him, how far they disabled him from pursuing his ordinary occupation, and also the physical and mental suffering to which he was subjected by reason of such injuries, and allow such damages as in their judgment would be a fair and just compensation for the same.

2. That if the jury shall find from the evidence in the cause, that the defendant owned and operated a railroad in the City of Cumberland, as stated in the first prayer, and that by the ordinance of the City of Cumberland it was prohibited from running its trains at a speed greater than six miles per hour, and that in the management of railroad trains it is regarded by experienced men as exceedingly dangerous to make a running switch, and that by one of the rules of the defendant, in force at the time of the accident complained of, the employees of the defendant in charge of their trains were prohibited from making such running switch, if practically avoidable; and if they further find that on the night of the 27th of July, 1879, the agents of the defendant were engaged in making up a train of cars by a running switch in the City of Cumberland, and that in so doing they raised the speed of the said cars to a rate of ten or twelve miles an hour within said city, and that it was practicable to make up said train without making a running switch, or raising the speed of said cars above six miles an hour, and that said night was dark and that it was only about two hundred and eighty feet from the place where the cars were separated to Williams street in said city, when the alleged accident occurred, and that said cars where said separation was made were running at the rate of ten or twelve miles an hour, and that it was down grade from said place of separation to the place of said accident, and that the tracks were wet and slippery so that the brakes did not easily check the speed of said cars, and that there was no light upon said cars excepting a hand lamp which the conductor had on the front platform of the front car, and that said cars reached said crossing or very near thereto before said conductor notified the brakeman in the rear of said first car to put down the brakes, and that immediately thereafter said cars ran over the plaintiff, at or near said crossing, and that from the time said cars left the place of separation until they struck the plaintiff, there was an interval of only about fifteen seconds, and that said crossing was a frequented thoroughfare for persons passing to and fro, and that the defendant has a watch-box and a watchman at said crossing in the day time but had none there on the night of the alleged accident, and had no bell on said cars or other means of notifying the plaintiff or others of their approach to said crossing, except said hand lamp which the conductor had, and sent no person in advance of said detached cars to said crossing to ascertain if the track were clear between the place where said cars were detached from the engine and the further side of said street or crossing, then the jury may find that the defendant was guilty of gross negligence in the management of said train of cars; and if they do so find, then their verdict must be for the plaintiff, even though they may find that the plaintiff was drunk whilst attempting to cross said tracks upon said street; provided, they further find, that the defendant, or its agents, if they had managed said cars with ordinary care and prudence, could have prevented the accident complained of.

3. That if the jury find from the evidence, that the accident complained of occurred, and that, if the defendant or its agents, had exercised ordinary care and prudence in the management of the cars which produced the accident, such accident could have been avoided, then the plaintiff is entitled to recover, notwithstanding the jury may believe the plaintiff was drunk at the time of the accident, and that such accident occurred not on Williams street, but south of it, on the defendant's railroad.

And the defendant prayed the court to instruct the jury as follows:

1. That, under the pleadings and evidence, it is incumbent on the plaintiff to prove that the injury complained of was caused entirely by the negligence or default of the defendants' agents in the management of the train of cars causing the injury, but if the jury shall find from all the evidence in this cause, that at the time and place, when and where the accident occurred the plaintiff was between the rails of one of the tracks at said place on his hands and knees and drunk, and that warnings were given by those in charge of said train, but not heeded--if the jury shall so find, and that while in the position between said rails as testified by the witnesses, the plaintiff was run over by said train of cars and injured, then that the plaintiff, by his act and conduct, contributed to produce the injury of which he complains, and the verdict of the jury must be for the defendant--unless the jury shall further find from the evidence in this case, that the agents of the defendant in charge of said train of cars after discovering the plaintiff on said track, if the jury shall so find, in the position as described by the witness, could, by ordinary and reasonable care, have prevented said train of cars from running over said plaintiff and injuring him, even though the jury may believe that the agents of the defendant were guilty of negligence in the management of said train of cars, before the agent of the defendant, discovered said plaintiff on said track.

2. That, under the pleadings and evidence, if the jury shall find that on the night of July 26th and 27th, the agents of the defendant, at Cumberland, were directed to place a train of three passengers cars on a siding in the Cumberland yard of defendant, and in placing said train of cars on said siding, said agents made a running switch at the place indicated on the plat by the witnesses--if the jury shall so find; and shall further find, that running switches were prohibited by the rules of said defendant, and that to make said running switches, the said train started and was running at a speed greater than allowed by the ordinance of the City of Cumberland--if the jury shall so find; and shall further find from the evidence, that after said switches had been passed by said train, and on said siding known as the "Tub Siding," and running down the same, with the conductor on the front car, with his light, and the brakeman between the first and second car, and said train was approaching a crossing in said city, known as Williams' road--if the jury shall so find; and shall further find, that the employee in charge of said train on the front car saw an object between the rails about ninety to a hundred and ten feet ahead, on the east side, and beyond said crossing, and thereupon gave an alarm, by hallooing sufficiently to warn a person on said track of danger--if the jury shall so find and that the warnings were given and continued several times, and in a tone of voice loud enough to warn any one having command of all his faculties, at the place where the accident occurred, of the danger, and in time to enable him to avoid it--if the jury shall so find; and shall further find that at the time of the accident the plaintiff was in the middle or between the rails of said track, east of, and beyond, said crossing, on his hands and knees, drunk, and a companion who was with him was endeavoring to pull him off, and outside of...