N. Cent. Ry. Co. v. State

• Decision Date: 13 January 1905
• Parties: NORTHERN CENT. RY. CO. v. STATE, to Use of GIIMORE.
• Court: Maryland Court of Appeals

60 A. 19

100 Md. 404

NORTHERN CENT. RY. CO.

v. STATE, to Use of GIIMORE.

Court of Appeals of Maryland.

Jan. 13, 1905.

Appeal from Court of Common Pleas; Henry Stockbridge, Judge.

Suit by the state, to the use of Alexander Gilmore, father of John Gilmore, deceased, against the Northern Central Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BOYD, PAGE, PEAROE, SCHMUCKER, and JONES, JJ.

Shirley Carter and John J. Donaldson, for appellant. William Colton, for appellee.

SCHMUOKER, J. This is an appeal from a judgment of the court of common pleas of Baltimore City in favor of the equitable appellee for damages for the death of his son as the result of an accident at a railway crossing. There is but one bill of exceptions in the record, and that is from the court's rulings on the prayers. The evidence as to the locus in quo of the accident and of the situation of the parties involved in it down to a few minutes before its occurrence is uncontradicted, but as to the circumstances of the accident itself there is the most positive conflict of testimony. The accident occurred at the Intersection of Eastern avenue, which runs east and west, and the tracks of the appellant, which run north and south in the bed of Ninth street. At that point Eastern avenue is 70 feet wide and Ninth street, on which the railroad tracks run, is 100 feet wide. There are two main tracks of the railroad in the middle of Ninth street, and there are two freight tracks to the west of the main ones, making in all four tracks occupying about 40 feet in width of the bed of the street. On each side of this set of tracks there is a pair of safety gates across the bed of Eastern avenue, which are operated from a watch box at the south end of the gates on the east side of the tracks. Any one standing on the westernmost of the four tracks at its intersection with Eastern avenue has a clear view southerly for a mile, if no cars are on that track. At the time of the accident a row of box cars standing on that track and extending north to the line of the south side of Eastern avenue greatly shortened the view southerly, but even then, by leaning forward or taking a step or two easterly, the full length of the view would have been restored. On the day of the accident John Gilmore, aged 18 years, the son of the equitable plaintiff, was engaged in driving a one-horse coal cart. About 2 o'clock in the day, while he was going easterly on Eastern avenue across the railroad tracks with his cart loaded with a ton of coal, the cart was struck on the south side by one of the appellant's engines going north, and thrown upon his feet, and such injuries were inflicted upon him that he died therefrom. The accounts as to the precise method of the occurrence of the collision between the engine and the cart are very conflicting. Thomas Kenny testified that he was standing in the doorway of his residence at the northeast corner of Eastern avenue and Ninth street at the time of the accident, and saw it happen. He said that Gilmore, riding upon his cart, and immediately followed by a similar cart, was going east on Eastern avenue, and came to the gates on the west side of the tracks, and found them down. After a few minutes the gateman, who was on the east side of the tracks, raised the gates, and beckoned for the carts to come over the crossing, and that Gilmore thereupon jumped down from his cart, took his horse by the head on the north side, and started to cross the tracks. When crossing the second track the cart was struck on the south side by the appellant's engine and pushed over on to the boy's feet. The witness said that he, standing in his doorway, saw the smoke and smokestack of the engine over the box cars, but could not see the engine before it came out from behind the cars; nor, in his opinion, could the boy who was injured see the engine from his position leading his horse. Witness heard no bell rung nor signal given from the engine as it approached, and felt sure that from the position he occupied he would have heard the bell if it had rung. He was standing only about 20 feet from the cart when it was halted by the western gate being down. Henry Dean, the driver of the second cart, corroborated Kenny's testimony as to the facts throughout, and said that he heard no bell rung or whistle blown from the engine. Charles Miller, who was present at the time of the accident, also corroborated Kenny's testimony as to all of the facts of the occurrence, except that he does not mention the circumstance that Gilmore was riding on the cart as he first approached the crossing, nor does he say anything pro or con in reference to signals from the engine as it approached. Henry Ruth, a cart driver, testified that he was familiar with the crossing, and that he was on the spot at the time of the accident. That by reason of the condition of the streets at the crossing it was necessary for the driver of a loaded coal cart to get down and take his horse by the head when crossing the tracks. "That the engine didn't ring any bell or blow any whistle there. There was nothing at all done; only after the boy was in danger, and could not get out of it the gatekeeper tried to make him come back. It had him dead, then, and he could not get out of the way." The witness was standing by Mr. Kenny's saloon, and saw Kenny standing in the door. On the other hand, James McGinness testified for the defendant that he was an eyewitness of the accident; that as Gilmore came down Eastern avenue toward the railroad crossing, he was beating the horse, and causing it to plunge violently, and just as he got to the crossing the trace or something snapped, and the horse went out of the harness. The boy got down from the cart and spent about five minutes fixing the harness. In the meantime the witness heard the bell of the east safety gate ring as that gate came down, and that the western gate against the boy (Gilmore) also came down, and the gatekeeper was growling at the boy, who began to beat his horse again, and it gave a lunge, and just then the engine came along like a flash and struck the cart. The engineer, fireman, a conductor, and two brakemen, all of whom were on the engine, testified, in substance, that it was coming north on the second track at a speed of about five miles an hour, with its bell ringing, when, the first they saw of the horse, it jumped right in front of the engine, and, although every effort was made to stop the latter, it struck the cart, and shoved it six or seven feet before coming to a standstill. The engineer testified that as he approached the crossing he was standing in his proper position on the right-hand side of the engine in full sight of the gateman, and received no warning or danger signal from him. The gatekeeper testified that he saw the boy coming down Eastern avenue, beating the horse, and driving recklessly, and that when he first saw the engine it was about 600 feet...