State v. Baltimore & O.R. Co.

• Decision Date: 06 December 1888
• Parties: STATE, TO USE OF RICKETTS, v. BALTIMORE & O. R. CO.
• Court: Maryland Court of Appeals

16 A. 210

69 Md. 494

STATE, TO USE OF RICKETTS, v. BALTIMORE & O. R. CO.

Court of Appeals of Maryland

December 6, 1888

Appeal from circuit court, Montgomery county.

Action by the state, to use of Margaret E. Ricketts, by her next friend, Greenbury C. Beckwith, against the Baltimore & Ohio Railroad Company, for a wrongful death. Verdict directed for defendant, and plaintiff appeals.

Argued before ALVEY C.J., and MILLER, IRVING, STONE, and BRYAN, JJ.

Rich. R. Beall, Jas. B. Anderson, and Jas Dawson, for appellant.

Thos. Anderson, Wm. V. Bouic, and John K Cowen, for appellee.

ALVEY C.J.

The single question in this case is whether, upon the evidence there was a sufficient case made to require the court to refer it to the jury for their conclusion. No testimony was given except that upon the part of the plaintiff; and, upon that testimony, the court was asked to instruct the jury that the negligence of the deceased directly contributed to his death, and the verdict should therefore be for the defendant. This instruction was given, and in giving it we think the court committed no error. The accident happened on the 20th of January, 1887, on the Metropolitan Branch of the Baltimore & Ohio Railroad, about midway between the Washington Grove and Derwood stations, on that branch of the road. It was not at a crossing, but in the open country, where, as the witness states, "the railroad is perfectly straight, and the view in either direction is unobstructed for a distance of from three-quarters of a mile to a mile." There were two witnesses who testified for the plaintiff as to the circumstances of the accident. The first, Beall, testified that he saw the deceased going towards Derwood station, walking on the ends of the ties of the railroad, outside of the rails; "that when he first saw the man no train of cars was in sight, but immediately thereafter the Gaithersburg train came in view, running at a high rate of speed, and struck the man in the rear, who was then and there instantly killed; that the train continued on its way without stopping; and that the train-men could have seen this man or any one on the track for at least three-quarters of a mile in a straight line before the point was reached where the man was killed. The wind was, at the time, blowing from the south-east, the direction in which the man was walking. The train was running with the tender in front of the engine, and witness saw no pilot on the tender, and heard no whistle blown or bell rung or signal given." The other witness, Williams, testified that he was walking on the railroad track, on the occasion when the accident occurred, driving a horse attached to a dump car on a tramway along-side the railroad, and which dump car made a good deal of noise, and that he was warned of the approach of the train by the vibration of the rails in time to escape permanent injury and to secure his horse; that he was at first walking slightly behind the man, (the deceased,) but at the time of the collision he was three or four ties in advance of him; and that he did not hear any bell rung, whistle blown, or signal given." There was also proof given to show that the deceased was a little hard of hearing; but this fact was wholly immaterial, unless it were shown that the servants of the appellee in charge of the train knew the fact of such infirmity, and that they recognized the deceased on the track in time to save him, by the use of reasonable care. The fact that the engine and tender were running back ward on a track though the country, where people were not expected, and had no right to be on the track of the road, cannot be regarded of itself as an act of negligence. The necessities of railroad operation may require such mode of moving trains, under special circumstances; and we all know it is constantly done upon all the roads of the country. Sullivan v. Pennsylvania Co....