Kendall Lumber Co. v. State, 77.

• Court: Court of Appeals of Maryland
• Writing for the Court: BRISCOE, J.
• Citation: 103 A. 141,132 Md. 93
• Parties: KENDALL LUMBER CO. et al. v. STATE, to Use of SHAFFER.
• Docket Number: No. 77.,77.
• Decision Date: 16 January 1918

103 A. 141
132 Md. 93

KENDALL LUMBER CO. et al.
v.
STATE, to Use of SHAFFER.

No. 77.

Court of Appeals of Maryland.

Jan. 16, 1918.

Appeal from Circuit Court, Allegany County; Robert R. Henderson, Judge.

"To be officially reported."

Action by the State of Maryland, for the use of Hannah E. Shaffer, against the Kendall Lumber Company and the Preston Railroad Company. From a judgment for plaintiff, defendants appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Gilmor S. Hainill, of Oakland, and George A. Pearre, of Cumberland, for appellants. E. R. Jones, of Oakland, and Albert A. Doub, of Cumberland (Frederick A. Thayer, of Oakland, on the brief), for appellee.

BRISCOE, J. This is an action brought in the circuit court for Garrett county, in the name of the state, for the use of the widow of Michael W. Shaffer, against the defendants, to recover damages for his death, caused by the alleged negligence of the defendants. The case was removed to the circuit court for Allegany county, where, after trial, a verdict was rendered by a jury in favor of the plaintiff for the sum of $3,600. From the judgment on this verdict the defendants have appealed.

The particular manner in which the death of the husband of the equitable plaintiff, as charged in the declaration, was caused and occurred, is that the defendants, while operating

103 A. 142

and running a certain engine and cars upon its tracks, "negligently and recklessly forced, ran, and drove said engine and cars upon, over, and against the said Shaffer," so as to cause his death while driving a hand car on the track of the defendants' railroad and while using due care and caution on his part.

The defendant the Kendall Lumber Company operates a large lumber business and lumber plant at Crellin, about four miles southwest of Oakland, Garrett county, and in connection with this plant they own and operate a railroad known as the Preston Railroad Company, one of the defendants in the case, which extends from Shaffer, W. Va., to Hutton, Md., a distance of about 35 miles. The railroad is used for the purpose of hauling logs and lumber and not for passengers, and the trains are known as logging trains. The train makes two round trips each day from Shaffer to Crellin, with no definite schedule, except one round trip in the morning and another in the afternoon of the same day.

The husband of the equitable plaintiff was an employe of the Kendall Lumber Company, and was at work at the mill at Crellin until 6 o'clock of the afternoon of the accident. On the 30th of November, 1915, the husband of the equitable plaintiff and five other employes of the Lumber Company, after stopping their work at the mill, put their hand car on the track at Crellin and started for their homes. Two of the men left the hand car at their homes near the railroad, about one mile from Crellin, but the other four proceeded south on the car to their homes, and when they had traveled a distance of about three miles from Crellin, and were within about a half mile of Nicholsons Crossing, the hand car was run into by one of the defendants' engines and log loader, a special train coming down from Shaffer, W. Va., to Crellin, and the plaintiff's husband and his son, James, were killed.

The theory of the appellants' case is that the death of the plaintiff's husband was, caused by the negligence of the defendants, first, in operating the cars upon its tracks at night without a headlight, and without using due care in keeping a lookout, when they had reason to expect the hand car with persons on it on the track at the time and at the place of the accident; second, because of the alleged negligence of the defendants in running a special train upon its tracks at night without notice to those using the hand car of the approach of the engine and log loader which caused his death; and...