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

• Decision Date: 14 November 1884
• Citation: 62 Md. 504
• Parties: THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY v. GEORGE H. STEBBING.
• Court: Maryland Court of Appeals

62 Md. 504

THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY v. GEORGE H. STEBBING.

Court of Appeals of Maryland

November 14, 1884

APPEAL from the Circuit Court for Cecil County.

This was an action brought by the appellee against the appellant to recover damages for injuries sustained by the former through the alleged negligence of the latter. The Port Deposit Branch of the defendant railroad extends from Perryville to the lower end of Port Deposit; and the portion of the road that extends from that point to the depot, which was situate in the middle of the town, was built by the Columbia and Port Deposit Railroad Company, and at the time of the accident, the right to use the track of this road was enjoyed by the defendant under a lease from that company. Nearly midway between the end of the Branch of the defendant and the depot, a culvert had been constructed by the Columbia Railroad at the time the railroad was built, to convey the surface water from the north-side of the track, under the bed of the road, to the Susquehanna river. At the time the railroad and culvert were built, the water of the river came near to the edge of the culvert; but in process of time the river shore beyond the railroad, by reason of accretions and other causes, became fast land, and extended for a considerable distance from the railroad property into what had been the water of the river. Subsequently a wooden trunk was placed there to convey the water flowing through the culvert, to the river; but in process of time this trunk rotted away, and the consequence was, that the water flowing into the culvert, being unable to escape, accumulated and formed a cesspool on the north-side of the railroad, and thus became a nuisance to persons residing in the vicinity. Upon complaint being made to the Columbia and Port Deposit Railroad Company, they caused a well to be dug on the town side of the culvert, which afforded a partial remedy; but the well was not dug deep or broad enough, and besides, was left by the railroad company uncovered. The town commissioners therefore directed Paxton, the town bailiff, to dig the well deeper and larger, to wall the same up, and cover it with stone. In pursuance of this direction, Paxton employed the plaintiff to assist him in hauling stone, and was so employed when the injury that gave occasion for this action occurred. The plaintiff himself testified that on the 25th of July 1882, Paxton, assisted by him, was hauling large stones for the purpose of covering the top of said well; that Paxton had procured an old horse and the wheels and shafts of a horse cart, and the stones were swung under the axle-tree of the cart by means of a chain; that in this way, they had already hauled and deposited one large stone at a point on the culvert opposite the well, and two more stones were required that during the morning of said day, after one stone had been deposited, Paxton and himself had returned to the quarry and procured another stone weighing five or six hundred pounds and with the same swung under the cart, returned to said culvert; that the road by which they reached the culvert was through Frazier's alley, which opens upon the railroad property one hundred feet north of said culvert; that they then passed along and upon the property of the said railroad and parallel to the track thereof, going south to said culvert; that the horse and cart were drawn on said culvert, the horse's head being down the track in the direction of Perryville; that they then prepared to deposit the stone on the culvert; and the stone had just been deposited, when he looked up and saw the defendant's locomotive and train of cars; that the locomotive was then about ten feet from the horse; that before he could escape from between the wheels of the cart, the locomotive was upon him, and the horse at the same instant whirling away from the track, forced the cart back towards the track, and himself, the cart and the horse were all drawn by the collision up the railroad about fifteen or eighteen feet; that the locomotive wheels passed over his foot, which he supposes happened through his efforts to keep from being forced upon the track, when he was backed towards it, between the wheels of the horse cart; that his foot was subsequently amputated above the ankle; that he supposes he was on the culvert about five minutes before he was struck by the locomotive; that the train was what is known as the nine o'clock train from Perryville; but he did not himself know the hour, as he had no watch; that when he came upon the defendant's property at Frazier's alley, he had a clear view for about half a mile towards Perryville, and as he went towards the culvert he had his face towards Perryville, and no train was visible on the defendant's railroad; that when he was lowering the stone on the culvert, he could not see down the railroad very well, as the horse and Paxton were in front of him; that no whistle was blown by the locomotive, or bell rung, nor any signal of approach of the train given; that the train was moving at a speed exceeding ten miles an hour; that when he first had notice of the approach of the train, it was impossible to make his escape, as the train was on him in an instant. The case is further stated in the opinion of the Court.

Exception:--The plaintiff offered the following prayers:

1. If the jury find that on or about the 25th of July, 1882, the plaintiff was injured by the locomotive and cars of the defendant, while operated by its agents on its road, and that said injury resulted directly from the want of ordinary care and prudence of the agents of the defendant, and not from the want of ordinary prudence on the part of the plaintiff,

directly contributing to the injury, then the plaintiff is entitled to recover.

2. That even if the jury believe the plaintiff was guilty of negligence in being near defendant's track, under the circumstances testified to before them, still he will be entitled to recover in this action notwithstanding such negligence on his part; provided the jury believe that the injury would not have happened to him had the defendant used, in and about the management of the train that injured him, ordinary care and prudence in giving the usual and reasonable signals of its approach, and in running its train at the speed prescribed by the town Ordinance of Port Deposit; (if they find such ordinance;) and provided further, that they find the facts stated in the preceding instruction.

3. If the jury find the Ordinance of Port Deposit, offered in evidence by the plaintiff, then it was negligence in the defendant to run its cars through the village of Port Deposit, at a rate of speed exceeding ten miles an hour; and if the jury believe the defendant's cars were run through said village at a speed exceeding ten miles an hour, then the defendant was bound to use the highest possible degree of care and caution, which it had the means and power to employ, having regard to the business in which it was engaged.

4. In considering the question of negligence, it is competent for the jury, in connection with the other facts and circumstances of the case, to infer the absence of fault on the part of the plaintiff from the general and known disposition of men to take care of themselves, and keep out of the way of difficulty and danger.

5. If the jury believe that the defendant's 9 o'clock train, on the 25th of July, 1882, from Perryville to Port Deposit, was provided with air-brakes for the prompt stopping of the train, but that the engine drawing said train was reversed, the tender thereof being in advance of the engine, and that by reason of said reversed position of the engine, the air-brakes could not be applied on that occasion to any portion of the train, except the tender of the engine; and shall further believe that the agents of defendant, by reasonable diligence and care, might have attached its engine to said train so that the air-brakes could have been applied to the entire train in case of emergency; and shall also believe, that if the said air-brakes had been in proper operation on all the cars, constituting defendant's train on the 25th of July, 1882, the injury complained of would not have happened to the plaintiff, then he is entitled in this action to recover, if he was injured in the manner stated in the declaration, unless by his own negligence he directly contributed to the injury.

6. If the jury believe defendant's 9 o'clock train, on the 25th of July, 1882, consisted of two coaches and a locomotive, all of which were supplied with a brake known as the "air-brake," and that by means of said brake the train could be stopped within a short distance, in case of emergency or danger, and that said brakes are for that reason placed upon railroad cars, and that this was known, or ought to have been known, to defendant's agents in charge of said train, then it was the duty of said agents to apply said brakes when it was reasonably necessary to avoid injury to persons or property on or near defendant's track; and if by want of ordinary care and diligence upon the part of said agents the locomotive was placed in such a position in relation to the said train, that air or steam could not be applied to all of said brakes on the cars constituting said train, and they were thereby rendered ineffective, or less effective in their operation than they otherwise would have been, then defendant was guilty of negligence; and if the jury believe that had the engine been in...