State, to Use of Coughlan v. Baltimore & O.R. Co.

• Decision Date: 28 February 1866
• Citation: 24 Md. 84
• Parties: STATE OF MARYLAND, Use of Mary Coughlan v. BALTIMORE & OHIO RAIL ROAD COMPANY, Baltimore & Ohio Rail Road Company v. State of Maryland, Use of Mary Coughlan.
• Court: Maryland Court of Appeals

24 Md. 84

STATE OF MARYLAND, Use of Mary Coughlan v. BALTIMORE & OHIO RAIL ROAD COMPANY, Baltimore & Ohio Rail Road Company v. State of Maryland, Use of Mary Coughlan.

Court of Appeals of Maryland

February 28, 1866

In an action against a railroad company to recover for injuries sustained by a child while riding as a trespasser on defendant's cars, if there was neglect or default on the part of the child, or the absence of that prudence which boys of like age and capacity usually exhibit, the defendants are not liable, though by the exercise of extraordinary care on their part the accident might have been prevented.

Cross appeals from the Superior Court of Baltimore City:

The action in this case was brought in the name of the State to the use of Mary Coughlan against the Baltimore & Ohio Rail Road Company, to the September Term, 1861, of the Superior Court of Baltimore City, to recover damages for the killing of her child, Peter Bannon.

The declaration alleges that the said Peter was wounded and injured on the 13th of October, 1860, by the wrongful act neglect or default of the said company's agents while engaged by the authority and direction of the said company in the management and use of their railway, etc., in such a manner that he afterwards, on the same day, of the said wounds and injuries, died.

The bill of particulars filed in the case state, that about four and a half o'clock, P. M., on the 13th of October, 1860 while a train of cars belonging to the said company were upon the railway at Locust Point, they were suddenly, without any brakesman or other person having previously gone back to see that the track was clear, and without sufficient warning or intimation to the people residing in the neighborhood of and along said railway, put in motion and backed around a short curve, by which means, Peter Bannon, a child, about ten and a half years old, the son of Mary Coughlan, the party for whose use this suit was brought, was run over and killed, the wheels of the cars of said train passing over and horribly crushing and mangling his head, so that he died of the wounds so received on the said 13th of October, 1860; and that there was negligence on the part of those having the management of said train of cars from which negligence the said death resulted, and that the damages claimed are $10,000. The defendants pleaded "Not Guilty."

Exception.--The plaintiff to maintain the issue on its part joined, proved by Newcomer, a police officer of Baltimore City, that his beat was at Locust Point, in said city, on the 13th of October, in the year 1860; that he knew the plaintiff's cestui que use and her children, the eldest of whom was named Peter, a likely lad, small, of twelve years of age apparently, and who attended to his mother's business when she was absent; that Mrs. Coughlan lived at the corner of Towson and Marriott streets, where she kept a grocery that there was what is called a Y in the rail road track where the road comes along Nicholson street, and at or near Towson street it follows a semi-circle until it reaches Marriott street, up which it passes close by Mrs Coughlan's house and store; that Marriott street is not paved or used as a carriage road, and the rail road passes through a cut between Towson street and Haubert street; that the next street to Towson street is Cooksie street; that there are houses on Towson street, and a number of them within the Y, which would prevent an engineman at the corner of Nicholson and Towson streets from seeing the end of the train if it extended past Mrs. Coughlan's up Marriott street; that the witness knew that the defendants' cars were often left standing across Towson street, and that he had notified the agents that it was improper, and that they must remove them; that there was a school house, and beyond that a spring, to reach which, from Mrs. Coughlan's and the other houses within the Y, it was necessary to cross Marriott street; that hearing that an accident had happened on the 13th of October aforesaid, he went to the spot, which was near the intersection of Cooksie and Marriott streets and saw where a person had been run over by the cars, and dragged apparently some thirty or forty yards. He afterwards saw the body, which was Mrs. Coughlan's eldest son, Peter, the brother of whom had been injured at the same time.

The plaintiff further proved by Mrs. Jennings, a competent witness, that Peter, the boy that was killed, was a slight made boy, small and cunning like, and apparently between ten and twelve years of age, who rendered to his mother the services of a boy of his age, taking care of the store when she went away.

George Wright, proved that after the accident he helped to cut loose and shove the cars back, so as to extricate the body, and that it was fifteen or twenty minutes before any of the hands of the defendants came to the place.

Slothower, a competent witness, produced on the part of the plaintiff, proved as follows: He was on his way from the brick yards, and saw Mrs. Coughlan's boys playing on the track--he heard the cars. The cars first moved slowly, and then faster. One got on the car, and one boy was getting on it. The train was being backed, and the boys were in front of the last car, and about twenty yards from witness; they were hanging on behind the cars when one fell. Witness began to cry out to the engineer--one boy was hanging on to the cars at the time. There was no agent or employee on the back of the train, or near it, that witness saw, when the accident happened.

Several other witnesses were offered by the plaintiff, who proved the character of the boy, and the circumstances of the extrication of the body, none of whom, however, saw the accident; and the plaintiff further offered evidence to show that the services of such a lad as the deceased to his mother were worth from $5 to $6 per month, and that the place where the accident occurred was the most populous portion of that part of the city.

The defendants, to support the issue on their part, offered evidence by Henry Linn, a competent witness, that he saw the accident as he was crossing the common from his work; that the children were playing on the common above the rail road track when the end of the train which was being backed came round the curve; that three or four minutes before the cars stopped, he saw the children run towards them, and the eldest, the deceased, get on the hindmost one when the train was still in motion, catching the bumper with his hands, and putting his feet on the brakerod below; that he then saw the big boy (Peter) fall off, with his head across the track, and he was killed. On cross-examination, this witness stated as follows: He was with two companions at the time, and when he saw the cars, he proposed to them to take a ride on them, but they objected and they did not go--witness had often done the same thing before. When witness proposed to get on the train, he was near enough for Mrs. Coughlan's sons to have heard what he said, but he cannot swear that they heard him or did not hear him. At the time of the accident, witness saw no agent or employee of the defendants at the end of the train, or near it, or in the neighborhood of it.

The defendants further proved by Sticker, teamster of the defendants at Locust Point, that he knew the deceased, and had often driven him and other children from the cars, and warned them of the danger they ran of being killed or crippled, and told the mother of Peter of the conduct of her children, when she said she had tried to keep them off, but could not; and the defendants proved a like notice to the children of Mrs. Coughlan and others, at various times, by Kelso, the watchman at Locust Point, in the service of the defendants, by Jacob Parker, the brakesman on the train that caused the accident, and by Ennes Toby, the conductor of the train; also by Shier, one of the defendants' employees.

The defendants further proved by Robert McManus, that he was the engineer of the engine No. 60 that was backing this particular train at the time of the accident; that it was a regulating engine, whose business was to collect together the cars from the adjacent wharves and tracks, and unite them into a train to be taken off by another engine; that on this occasion he had collected forty-four or forty-six cars, and had backed them until they lapped round the Y, and that he had still four or six cars to add to make up the desired number; that he had backed the train from time to time, and when he added the last cars, he backed it again at a very low speed, for it was as much as the engine could do to move it, the grade on Marriott street, up which it extended, being up hill; that he blew his whistle three times before he began to back it, which is the rail road signal to its employees for backing, and he was confident he so blew it on this occasion; that he could not see the end of the train from where he stood on his engine; and that he was not aware of the accident, and did not become aware of it for half an hour afterwards.

On the cross-examination of Jacob Parker, above named, he said that it was his business to attend to the cutting loose and attaching of the train as it was being made up, and applying the brakes; that he was so engaged on this occasion not far from the engine; that he knew the whistle was blown, having been led by circumstances to recollect it on the evening of the day of the accident, but that he did not know that the accident had happened until half an hour afterwards; that he did not go to the rear of the train before it was moved backwards, and that it was not his practice to do so. In their examination in chief, both McManus and Parker testified to the fact that the train was moving very...