State, to Use of Barnard v. Philadelphia, W. & B.R. Co.

• Decision Date: 02 November 1883
• Citation: 60 Md. 555
• Parties: THE STATE OF MARYLAND, Use of Mary M. Barnard and Others v. THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY.
• Court: Maryland Court of Appeals

60 Md. 555

THE STATE OF MARYLAND, Use of Mary M. Barnard and Others v. THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY.

Court of Appeals of Maryland

November 2, 1883

Appeal from the Circuit Court for Cecil County.

This action was brought under the Code of Pub. Gen. Laws, Art. 65 in the name of the State, for the use of the widow and children of John R. Barnard, deceased, to recover damages for the killing of the said Barnard, alleged to have been occasioned by the negligence of the agents of the railroad company. After the evidence was in, the plaintiff offered seven prayers, and the defendant nineteen. The court (Stump J.,) rejected the prayers of the plaintiff, and granted the first prayer of the defendant which instructed the jury that there was no legally sufficient evidence in the case, that John R. Barnard was killed by the defendant's negligence. The plaintiff excepted. The jury rendered a verdict for the defendant, and judgment was entered on the verdict. The plaintiff appealed. The facts are sufficiently stated in the opinion of the court.

The cause was argued before Bartol, C.J., Yellott, Miller, Alvey and Irving, JJ.

James P. Gorter and H. Arthur Stump, for the appellant.

William J. Jones and Alexander Evans, for the appellee.

Irving J., delivered the opinion of the court.

The only ground, upon which the appellant's counsel have claimed a reversal in this case, is that the Circuit Court erred in taking the case from the jury, by an instruction that there was no legally sufficient evidence, that the death of John R. Barnard was occasioned by the defendant's negligence; and the only negligence, of which they contended there was evidence, was that the bridge, over Union street, in the town of Havre de Grace, was not entirely covered with plank.

The facts are few, simple and uncontroverted. On the morning of the 15th of December, 1881, the deceased was found dead upon a bridge of the appellee, built over Union street, in Havre de Grace. He lived at Perryville, on the other side of the Susquehanna River. He had been an agent of the railroad at that place for some years; but had been discharged some time before his death for intemperance. He was consequently perfectly familiar with the road and the localities around the place where he was found dead. He had been accustomed to walking across the bridge frequently by day and by night; and at all times of the night. He was in Havre de Grace the night before his discovery on the bridge dead, and was drinking. He was last seen, near midnight, in the neighborhood of the ticket office, or station, and witness thought he was ""pretty tight." He was advised not to attempt to walk across the bridge that night, but he insisted he would go home. When last seen he was at the proper passenger platform in front of the station house. When found he was on the other side of the railroad track, between the south platform and the railroad track. He was caught between two cross-ties, outside the railroad track, and between it and the platform on that side. He had slipped down as far as his hips. His body was bent forward toward Perryville, his breast on one cross-tie and his head on the one next beyond. One shoe and stocking were off, and with his hat, and flask of whiskey (which was still corked) were found in the street below. His neck was broken, and there was a wound on the back of his head, and one on his left shoulder; and his shins were bruised. The deceased had one lame foot, which was painful upon which he wore a large and untied shoe. He said of that foot, that if he "took his shoe off and let the fresh air...