Philadelphia, W. & B. R. Co. v. Burkhardt

• Decision Date: 17 June 1896
• Citation: 34 A. 1010,83 Md. 516
• Parties: PHILADELPHIA, W. & B. R. CO. v. BURKHARDT et al.
• Court: Maryland Court of Appeals

34 A. 1010

83 Md. 516

PHILADELPHIA, W. & B. R. CO.

v. BURKHARDT et al.

Court of Appeals of Maryland.

June 17, 1896.

Appeal from court of common pleas.

Action by Mary Burkhardt and Michael Burkhardt, her husband, against the Philadelphia, Wilmington & Baltimore Railroad Company, to recover for personal injuries. Judgment for plaintiffs, and defendant appeals. Reversed.

Argued before McSHERRY, C. J., and BRYAN, FOWLER, BOYD, ROBERTS, and RUSSUM, JJ.

John J. Donaldson and Charles H. Carter, for appellant.

Thomas C. Ruddell, and Joseph W. Bristor, for appellee.

RUSSUM, J. This suit was instituted by the appellee (the plaintiff below) to recover of the appellant for personal injuries alleged to have been received by the female plaintiff in consequence of the culpable negligence of the appellant's servants in the management of a "shifting engine," at a point in Baltimore city where the railroad of the appellant is crossed by O'Donnell street, otherwise known as "Mount Carmel Road." The verdict was for the plaintiff, and the defendant has appealed; and it is sought by this appeal to have corrected certain alleged errors involved in the refusal of the court below to grant certain prayers offered by the defendant, and in granting the two prayers offered by the plaintiff.

The facts of the case are few and simple: On the 24th of April, 1894, the female plaintiff was driving alone to her home, by the way of O'Donnell street or the Mt Carmel road, and so across the railroad of appellant At this crossing the appellant had located its "yard,"—a place for the deposit of cars, and the making up of its freight trains. The female plaintiff knew this crossing very well, and had been driving the same horse over it three or four times a week for six months preceding the accident. As she approached the crossing, the gates were down, and, after waiting some little time, they were raised, and she attempted to cross, when the gates were again lowered, until an engine, which was then moving by, with several cars attached, had passed. She turned her horse, and drove to the top of the hill, and waited until they were again raised, and then started to drive across. According to her testimony, the "engine was then standing about live or ten feet from the crossing (though l other witnesses say that the distance was greater), and steam was escaping from it on both sides and at the top. At this, her horse took fright, and began to run as soon as she reached the track; and, notwithstanding her efforts to control him, he ran the wagon against a telegraph pole on the street, some distance beyond the crossing, throwing her out, and causing the injuries for which this suit is brought.

The only question in the cause is whether these facts show that there was culpable negligence on the part of the defendant, under such circumstances as to render it liable therefor. In solving this question, it must be remembered that the defendant, equally with the plaintiff, had the right to the use of this street; that the crossing was at or near the yard, or place of deposit for its freight cars; that the shifting or drill engine, when engaged in shifting cars to make up a train, is liable to move at any moment from point to point, as the exigencies of the service may require, and that it is absolutely necessary for its proper employment that there should always be sufficient steam to enable it to properly execute the work assigned it The female plaintiff testifies that steam was being exhausted on both sides and at the top, but whether the amount escaping or the noise made thereby was unusual or unnecessary she does not state. One of her witnesses (Mr. Smith) states that the steam was escaping from the top, "just as engines do when...