Northern Cent. Ry. Co. v. State

• Decision Date: 24 November 1868
• Citation: 29 Md. 420
• Parties: THE NORTHERN CENTRAL RAILWAY COMPANY v. THE STATE OF MARYLAND, use of ADELINE PRICE, widow, and others.
• Court: Maryland Court of Appeals

29 Md. 420

THE NORTHERN CENTRAL RAILWAY COMPANY v. THE STATE OF MARYLAND, use of ADELINE PRICE, widow, and others.

Court of Appeals of Maryland

November 24, 1868

APPEAL from the Superior Court of Baltimore City.

This was an action, brought by the State, for the use of the widow and children of Robert Price, deceased, to recover damages resulting from his death, alleged to have been caused by the appellant. It appeared from the evidence at the trial, that the deceased, on the night of the 26th of June, 1866, was run over at Cockeysville by the Express train of the appellant and apparently killed. Supposing him to be dead, the agent of the appellant, at Cockeysville, without objection on the part of the conductor, caused the body to be locked up in the appellant's warehouse, and the next morning it was found that he had come to life during the night, dragged himself across the warehouse and was lying dead at some distance from where he had been placed. The train was the Elmira Express which had left Baltimore at 9.45 that night, and was going at a rapid rate of speed, but not beyond its schedule time. The engineer, Gardner Cobb, stated "that after he first saw the man it would have been impossible to save him at the speed they were going; nor even if they had been running at the rate of twenty miles or ten miles an hour, but he might have been saved if they had been going at the rate of four miles an hour; that it was not his duty to slacken his speed on approaching Cockeysville, as that train did not stop there, and therefore it was not, as far as that train was concerned, a 'station,' within the meaning of the 49th rule, given in evidence by the plaintiff; and there was no switch at Cockeysville upon the east track, on which his train was running; that he sounded the whistle (as required by the 52d rule,) about a quarter of a mile from where the rail road crossed the turnpike, the spot for sounding the whistle being a tree, which he was able to identify; that the night was dark, with a slight misty rain; that he crossed the turnpike at the speed, he thought, of twenty-five or thirty miles an hour, which was not unusual or in excess of what the time tables of the appellant required. The speed at that time, he thought, was as great as it was at any time between Baltimore and Harrisburg. Through the city of Baltimore the rate allowed by city ordinance is four miles an hour. After passing the turnpike, and before reaching the depot or station house, he saw, by the light of the reflector, a horse upon the track, apparently seventy-five or a hundred yards ahead. The horse appeared to be facing towards him, and in the act of rearing, and, as he thought, a man was on his back. That he immediately gave the signal of danger by sounding the whistle, but did not reverse the engine, as by so doing, at the speed at which he was running, he would probably have thrown the train off the track and thereby endangered the lives of all or many of the passengers. Almost instantaneously the collision took place; the engine running under the horse while he was in the act of rearing. Before the train could be stopped, it had run past the first bridge (a small iron one not covered,) and up to about half way between that and the next bridge, which was a covered one (neither of said bridges having any footway that could be crossed by a horse,) on stopping the train, he got off and gave it in charge of the fireman, who backed it slowly towards Cockeysville, he and the conductor walking in advance, with a light, in search of the man and horse. They found the horse dead, opposite the warehouse, over on the west track, the train being on the east track, and the saddle and the man's hat near by the horse, but not finding the man, he suggested that he was on the pilot of the engine, and there they found him, lying on his back, and apparently dead that the structure of the engine there being three slanting rods, running down in front, was such that the horse could not have been carried on it any distance."

The employees of the Rail Road Company attached to the train took him down, and some one proposed that he should be carried into the rail road telegraph office, but Shaffner, the telegraph operator and station agent of the appellant, objected, and at his instance, and with the consent and under the direction of the conductor, he was carried by the train hands into a warehouse belonging to the company, an isolated stone building, and there placed upon a board on top of some barrels, and locked up--Shaffner, the station agent, taking the keys. It was remarked at the time, "that the man ought to be examined, and that the place was unfit for him to be placed in." No physician was sent for, to make an examination into the nature and extent of his injuries. Upon unlocking the warehouse in the morning, it was found that he had come to life during the night, and had moved some paces from the spot where he had been laid, and was found in a stooping posture, holding his right leg with his hands, dead but still warm, having died from hemorrhage of the arteries of his right leg, which was crushed at and above the knee.

By the testimony of a physician, who had been called in at the coroner's inquest, it appeared that the deceased had his right leg cut and broken, and there was a small cut on his scalp, and also on his right arm. There was no apparent injury of the skull or brain. According to the medical testimony, the hemorrhage of the artery of the leg caused his death within an hour or two from the time when blood commenced flowing. The body was still warm when visited in the morning, but life was then extinct.

The following rules of the defendant were given in evidence by the plaintiff:

"49. Enginemen shall approach switches and stations cautiously, and have their trains under control, until the safety signal is received, or they can see that all is right and clear for the train."

"52. Enginemen must sound the whistle at least one-quarter of a mile from every road-crossing, and the sound must be repeated at intervals, or the engine bell rung, until the road-crossing is passed. No excuse will be received for accidents that may occur through neglect of this precaution."

The plaintiff offerred the following prayers:

1. If the jury find that Robert Price, on the night of the 26th of May, 1866, while crossing the rail road of the defendant at Cockeysville, in Baltimore county, on horseback, was run into by a locomotive of the defendant on its said rail road, and that his death was occasioned by the gross negligence of the defendant or of its agents, and that by the exercise of ordinary care on the defendant's part, the accident might have been prevented, and that Price could not, by the exercise of ordinary care on his part, have avoided the consequences of such negligence of the defendant or its agents, then the jury ought to find for the plaintiff, and may award such damages as they may think proportioned to the injury, resulting from such death, to the widow and children, respectively, of Price, for whose benefit this action is brought.

2. That if the jury shall find from the evidence that the collision which resulted in the death of the deceased, was not caused by the negligence of the defendant, the plaintiff is not entitled to recover, unless the jury shall further find that the death of the said Price was subsequently caused by the gross negligence of the defendant or of its agents, acting in the course of their employment.

And the defendant asked the following instructions:

1. If the jury shall find from the evidence that the negligence or want of care of the deceased in any way contributed to cause the collision which resulted in his death, the plaintiff is not entitled to recover.

2. That unless the jury shall find from the evidence that the collision, which resulted in the death of the deceased, was caused by the negligence of the defendant, the plaintiff is not entitled to recover, and that there is no evidence from which the jury can find such negligence.

3. That if the jury shall find a verdict for the plaintiff, in assessing the damages, they are not to take into consideration the mental pain and suffering of the plaintiff's cestuis que use in consequence of the death of the deceased, and are not to give against the defendant punitive, vindictive or exemplary damages, but in estimating the damages, they are confined to the pecuniary damage sustained by the parties for whose use this action is brought.

4. That all the evidence relative to the conduct of the defendant's agents towards the deceased, subsequent to the collision which resulted in his death, is inadmissible, and must not be considered by the jury.

5. That unless the jury shall find from the evidence that the collision, which resulted in the death of the deceased, was caused by the negligence of the defendant, the plaintiff is not entitled to recover.

The Court granted the prayers of the plaintiff, the first being granted in connection with the defendant's third prayer.

The defendant's second and fourth prayers were rejected by the Court, and its fifth prayer was rejected as offered, but granted as qualified by the plaintiff's second prayer.

To this ruling of the Court, the defendant excepted.

The defendant's first prayer was conceded by the plaintiff's counsel and granted by the Court, but after the plaintiff's counsel had opened the case to the jury he was followed by the defendant's counsel, who insisted that upon the defendant's first prayer, the plaintiff could, under no circumstances, recover, if the jury found that the deceased by any negligence on his part contributed to the collision. The plaintiff's counsel then stated that if such construction were...