MacFeat v. The Philadelphia, Wilmington and Baltimore Railroad Co.

• Decision Date: 04 March 1904
• Court: Delaware Superior Court
• Parties: ALEXANDER L. MACFEAT, Administrator of WALTER MAC FEAT, deceased, v. THE PHILADELPHIA, WILMINGTON and BALTIMORE RAILROAD COMPANY, a corporation of the State of Delaware

62 A. 898

21 Del. 52

ALEXANDER L. MACFEAT, Administrator of WALTER MAC FEAT, deceased, v. THE PHILADELPHIA, WILMINGTON and BALTIMORE RAILROAD COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

March 4, 1904

Superior Court, New Castle County, February Term, 1904.

ACTION ON THE CASE (No. 38, September Term, 1902) brought by Alexander L. MacFeat, administrator of Walter MacFeat deceased, against the Philadelphia, Wilmington and Baltimore Railroad Company, to recover damages for the death of said deceased which was alleged to have been caused by the negligence of said company, on the 26th of June, 1902, at its French Street Station in the City of Wilmington.

At the trial plaintiff proved that on the 26th of June, 1902, Walter MacFeat was standing upon or crossing over the spur track of the defendant Company nearly opposite and south from the waiting-room door of the defendant's French Street Station about the time the 1.37 p. m. Philadelphia express was due. That several others who were waiting for said train were also standing or moving about said tracks; that there was a cement pavement extending entirely around said station 137 feet long and varying in width from 28 to 35 feet; that near the side track or spur on which MacFeat was standing and to the south of it was the south-bound track of the defendant company, and six feet further to the south of the latter track was the north-bound track of said company-- all of which tracks were at grade and had boards between them forming a crossing or passage way from the said station to certain of defendant's trains. That when the said express train was coming up to the station on the north-bound track suddenly and without prior warning, a shifting engine of the defendant company, with two empty passenger cars attached started west on said track on which MacFeat was standing and at the same time began to blow off steam; that MacFeat apparently startled by the unexpected movement of the shifter, and in order to escape being run over by the same, moved away from said track, with his right side towards the north-bound track on which the express train was then coming in at a very rapid rate (the testimony being that at the time of the accident the train was running from 25 to 30 miles an hour), and in so doing was struck in the hip or back by the projecting timbers of the cow catcher of the engine of said express train whereby he was hurled in front of and underneath the running board at the front of the moving shifter; that his body was rolled over a few times and crushed under said running board before the shifter came to a standstill; that by said striking by the engine and rolling under the running board of the shifter MacFeat was so badly injured that he died in about six hours thereafter. It was further proved that the deceased was employed at the Kiamensi Woolen Mills near Wilmington but usually went to his home in Philadelphia on Saturdays to visit his family and as a rule traveled over the B. & O. Railroad but sometimes used the defendant company's road; that on the Saturday in question he rode into town from Stanton with a witness named Guest and told the latter that he was going home to Philadelphia from Wilmington on the train that left there somewhere about one o'clock. That on arriving in Wilmington about twelve o'clock said witness stopped his team at Front and Madison Streets and MacFeat got out and walked on down Front Street towards the defendant company's station. Witness learned the following morning that MacFeat had been struck and killed by one of the defendant's trains.

The defendant produced evidence to the effect that MacFeat crossed the track in front of the shifter at a rapid rate and proceeded diagonally across the southbound to the northbound track, on which the express train was approaching, with his head down and his hands in his pockets and never looked or stopped until he was struck by the said express train.

During the course of the trial the following rulings were made as to the admission of testimouy:

Alexander L. MacFeat, the plaintiff, was asked by Mr. Knowles the following questions:

Q. State as to your brother's habits with respect to industry at the time of his death?

A. He was a very steady man and never lost any time from his work, that I know of.

Q. Was he or not a careful man?

A. I would consider him to be very careful.

Mr. Gray:--We object. That question has been ruled on in this Court before. It is not whether he was an ordinarily careful man or not. The sole issue here is--if there is any issue as to his care--as to whether at the time of the accident he was in the exercise of due care.

Mr. Melson:--The object of the question is to show that if he was careful, his life was of more value than that of a careless man. I believe the Court ruled it in in the Cox case.

PENNEWILL, J.:--

You mean it has reference to his earning capacity?

Mr. Melson:--Yes, reference to the loss.

PENNEWILL, J.:--

We think it too general.

Mr. Ward:--I move that the testimony on that point be stricken out.

PENNEWILL, J.:--

Let the answer to that question be stricken out.

Dr. James A. Draper, who testified to the nature of the wounds upon the body of Walter MacFeat, was asked by Mr. Knowles the following question:

Q. Were those injuries that he received, and the shock, such as would have been caused by being struck by an express train or the engine of it, going at the rate of 25 or 30 miles an hour and his body being rolled or crushed under a running-board of a shifting engine?

(Objected to by counsel for defendant, as not a proper question for an expert to answer. Objection sustained.)

John Sharp, a witness produced and duly sworn, at the trial of the above stated case, on behalf of the plaintiff, was asked by Mr. Knowles, among others, the following questions:

Q. Are you familiar with the tracks and the crossing there (referring to the tracks and crossing at the French Street Station of the defendant Company)?

A. Yes, sir.

Q. Right in front of the station?

A. Yes, sir.

Q. And have seen others passing over it to trains going backward and forward?

A. Yes, sir; I have traveled over it every day for over a year.

Q. Is that platform there and passageway or crossing, or not, in your judgment, an unusually unsafe crossing for persons to use and to wait upon for the north-bound trains?

(Objected to by Mr. Ward, of counsel for defendant, on the ground that it was calling for a conclusion of fact, which was for the jury to determine and not for the witness.)

PENNEWILL, J.:--The majority of the Court hold the question to be inadmissible.

Q. In being down to take the 1.37 train, and other northbound trains, have you seen the shifter and those waiting cars at any other position than where they were on that day?

(Objected to by counsel for defendant as irrelevant.)

(Counsel for plaintiff stated that they wished to show a custom on the part of the defendant company of standing the shifting engine and one or more cars in front of the station about the time of the approach of the 1.37 train, to act as a bar or as a fence to keep the people back off of the dangerous part of the platform where the tracks are; that it was proper to have the train there, that it was frequently seen there and did serve that purpose.)

PENNEWILL, J.:--

We think this question is inadmissible.

Mr. Knowles:--We offer in evidence the City Ordinances, Section 12, page 376, in reference to speed of trains passing through the city.

(Objected to by Mr. Gray, of counsel for defendant, on the ground that in order to introduce in evidence an ordinance of a municipality, said ordinance should be identified and described with particularity in the pleadings, whereas the allegation in plaintiff's declaration concerning the same was that the defendant's train which caused the accident was at the time moving at an unlawful rate of speed through the city, to wit, at a speed greater than six miles an hour. No authority was cited in support of the above contention.)

PENNEWILL, J.:--

We think the Ordinance admissible.

(Mr. Gray, of counsel for defendant, here states to the Court that the witness Lewis Guest, called on behalf of the plaintiff at the afternoon session of the preceding day, had testified to certain statements made by Walter MacFeat, on the morning of the accident, to the latter concerning said MacFeat's intention about going to Philadelphia on the afternoon train of that day; that such statements were obviously improper and although no objection was made to the testimony at the time, yet he considered that under the principles of evidence there could be no time limit before the case was submitted to the jury, for a motion to strike out evidence and, therefore, he made the motion that all such evidence as he had above referred to given by said witness, should be stricken out.)

PENNEWILL J.:--

You made no objection at the time to this evidence and under our practice, we think it is too late to make the motion now. Our practice is to require the motion to be made at or about the time the evidence is given.

The Court refuse your motion to strike out the testimony.

Harry Bucher, a witness being produced, sworn and examined on the part and behalf of the plaintiff, testified as follows:

By Mr. Knowles:

Q. Where do you reside and what is your occupation?

A. At 902 West Eighth Street and I am a photographer.

Q. At the request of counsel for plaintiff in this case, did you make a photograph of French Street Station.

A. I did.

Q. Are you familiar with that locality?

A. I am.

Q. Have you been familiar with it for the last several years?

A. Yes, sir.

Q. What is the date of the photograph or...