Maryland, D. & V. Ry. Co. v. Brown

• Decision Date: 12 January 1909
• Citation: 71 A. 1005,109 Md. 304
• Parties: MARYLAND, D. & V. RY. CO. v. BROWN.
• Court: Maryland Court of Appeals

71 A. 1005

109 Md. 304

MARYLAND, D. & V. RY. CO. v. BROWN.

Court of Appeals of Maryland

January 12, 1909

Appeal from Baltimore Court of Common Pleas; George M. Sharp, Judge.

Personal injury action by James H. Brown against the Maryland Delaware & Virginia Railway Company.Judgment for plaintiff and defendant appeals.Affirmed.

In an action by an engineer for injuries from a collision with an escaped locomotive, where there was evidence tending to show that a defective throttle was the cause of the escape, a prayer that if an employee of the company placed the escaped engine on a siding, chocking its wheels, closing its throttle valve, etc., and leaving it in charge of two hostlers, on an upgrade, and it could get onto the main track only by running through two switches, defendant should recover unless sufficient hostlers were not supplied to watch the engine was properly refused as ignoring evidence of the defective throttle, as well as the theory of the application of external force starting the engine.Plaintiff offered the following prayers:

"(2) The jury are instructed that it is the duty of the employer to use due and reasonable diligence, having respect to the nature of the service of the employed, to provide suitable appliances and instrumentalities for doing the work.And if the jury find from the evidence that at the time of the accident and injury to the plaintiff, he was in the service of the defendant as a locomotive engineer, driving a locomotive to which a train of cars was attached from Rehoboth Beach, Del., to Love Point, Md., and whilst so engaged on the 6th day of August, 1905, a collision occurred between said engine, so driven by the plaintiff and another engine unmanned, the property of the defendant, and running wild on the same track on which the plaintiff was operating his engine, and that by reason of such collision the plaintiff was injured, and that such collision occurred because said runaway engine was unsafe and unfit for the uses and purposes to which it was applied by the defendant under all the evidence in this case, then if the jury further find that the plaintiff was without negligence or want of care on his part in the premises directly contributing to the happening of the accident and injury, and that such accident and injury to the plaintiff was directly caused by the negligence and want of care in the premises of the defendant, the plaintiff is entitled to recover."Granted.

"(3) If the jury shall find a verdict for the plaintiff, then in estimating the damages they are to consider his health and condition before the injury complained of, as compared with his present condition in consequence of said injury, and how far, if at all, it is calculated to disable him from engaging in those employments for which, in the absence of such injury, he would have been qualified, and also the physical and mental suffering, if any, to which he was subjected by reason of said injury, and to allow him such damages as in the opinion of the jury will be a fair and just compensation for the injury which he has sustained."Granted.

Defendant offered the following prayers:

"(1)The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to show that the defendant failed in any legal duty owing by the defendant to the plaintiff, and that therefore, under the pleadings and evidence, their verdict must be for the defendant."Refused.

"(2)The defendant prays the court to instruct the jury that there is no evidence in this case legally sufficient to entitle the plaintiff to recover, and that therefore under the pleadings and evidence herein the verdict must be for the defendant."Refused.

"(3)The defendant prays the court to instruct the jury that if they find that the locomotive called in the testimony 'runaway locomotive' was standing on the siding on the day the injuries were sustained by the plaintiff, as testified to by the defendant's witnesses, and that the said locomotive was in charge of the defendant's employés, as testified to by the defendant's witnesses, and that the said locomotive was in charge of the defendant's employés, as that the said locomotive ran away, and that the said running away was occasioned by the neglect or carelessness on the part of those placed in charge of the same by the defendant, then their verdict must be for the defendant."Refused.

"(4)The defendant prays the court to instruct the jury that if they shall find that the plaintiff was in the employ of the defendant in July, 1905, as engineer, and that as such engineer he ran engine No. 1, as testified to by him, and that in running said engine he discovered that she was defective in the manner testified to by him, and that, notwithstanding such discovery, he remained in the employ of the defendant until August 6, 1905, and that on said last-mentioned day he was injured in the manner testified to by the plaintiff and his witnesses; that engine No. 1 ran away by reason of the defect aforesaid--the plaintiff is not entitled to recover under the pleadings and evidence, and their verdict must be for the defendant."Refused.

"(5)The defendant prays the court to instruct the jury that if they shall find that on August 6, 1905, the plaintiff was in the employ of the defendant in the capacity of engineer, and that late in the afternoon of said day was bringing, in said capacity, one of the defendant's trains to Love Point, and if they shall further find that engine No. 1, on August 6, 1905, was in good order; that on the morning of that day she was moved by the witness Exeter to the water tank, and then returned to the side track; that after reaching said track, said witness turned off the steam by closing the throttle valve, put the reverse bar in the center, chocked her wheels, and then left her in charge of the hostlers; that said hostlers were competent employés; that said engine stood on said side track until late in the afternoon of August 6th--then their verdict must be for the defendant, notwithstanding they may further find that late in said afternoon said engine started off in the manner testified to by the plaintiff's witnesses, and collided with the defendant's train aforesaid, on which plaintiff occupied the position of engineer, thereby injuring the plaintiff."Refused.

"(6)The defendant prays the court to instruct the jury that if they find from the evidence that the plaintiff sustained the injuries testified to by the plaintiff's witnesses, and that the injuries were caused by a defective condition of the locomotive called in the testimony 'runaway locomotive,' and if they find that the said defective condition was due to a latent or hidden defect not discoverable by any reasonable or ordinary inspection, then their verdict must be fore the defendant."Granted.

"(7)The defendant prays the court to instruct the jury that an employer is bound to use reasonable care to procure sound machinery and appliance for his employés, but it is not bound to keep such machinery and appliances free from defects."Refused.

"(8)The defendant prays the court to instruct the jury that if they find from the evidence that the injuries to the plaintiff were the result of an inevitable accident, then their verdict must be for the defendant."Granted.

"(9)The defendant prays the court to instruct the jury that if they find from the evidence that the plaintiff sustained the injuries, as testified to by the plaintiff's witnesses, and that the injuries were caused by a defective condition of the throttle valve of the locomotive called in the testimony 'runaway locomotive,' and if they find that the defective condition of the throttle was due to latent or hidden defects not discernible by any reasonable or ordinary inspection, then their verdict must be for the defendant."Refused.

"(10)The defendant prays the court to instruct the jury that inasmuch as the evidence shows that on August 6, 1905, the plaintiff was employed by the defendant in the capacity of engineer in running its engine, and inasmuch as the evidence further shows that on the morning of August 6, 1905, the witness Exeter, also in the employ of the defendant in its machine shops, placed engine No. 1, then in good condition, on the side track at Love Point, turned off the steam by closing the throttle valve, put the reverse bar in the center, chocked her wheels as testified to by him, and then left her in charge of the hostlers who were competent employés, and that said engine stood on said side track until late in the afternoon of the 6th day of August, and that said side track ran upgrade towards and entered the roundhouse track by a switch, and that the roundhouse track entered the main track by a switch, and that said engine in order to get on the main track had to run through said two switches, their verdict must be for the defendant under the pleadings and evidence."Refused.

"(11)The defendant prays the court to instruct the jury that inasmuch as the evidence shows that engine No. 1 was placed on the side track by the witness Exeter, her steam shut off by the closing of her throttle valve, her reverse bar in the center, and her wheels chocked, and inasmuch as there is no evidence to show that engine No. 1 was defective in such a way that she could start off in the condition and under the circumstances in which she was placed by the witness Exeter on said side track, and inasmuch as the evidence shows that the defendant employed competent employés, and placed them in charge of said engine, their verdict must be for the defendant under the pleadings and evidence in this case."Refused.

"(12) The jury are instructed that the defendant is not an insurer of the lives or limbs of its...