State v. Philadelphia, B. & W.R. Co.
| Decision Date | 16 November 1910 |
| Citation | 78 A. 730,114 Md. 1 |
| Parties | STATE, to Use of LILLEY, v. PHILADELPHIA, B. & W. R. CO. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Cecil County; Wm. H. Adkins and Philemon B. Hopper, Judges.
Action by the State, to the Use of Cecil F. Lilley, against the Philadelphia, Baltimore & Washington Railroad Company. From a judgment for defendant on a directed verdict, plaintiff appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.
Joshua Clayton, for appellant.
Frederick T. Haines, for appellee.
This suit was brought in the name of the state for the benefit of the equitable plaintiff, for damages for the killing of his infant daughter by one of the trains of the appellee company at a public crossing of its tracks.
At the close of all the testimony, in the trial of the case below the court granted the prayer of the defendant, instructing the jury to find a verdict in its favor for want of evidence legally sufficient to entitle the plaintiff to recover. The court had refused to grant that prayer when offered at the close of the plaintiff's testimony. The plaintiff offered two prayers, both of which were rejected. The first of these prayers predicated the plaintiff's right to recover upon the finding by the jury that his daughter's death had been caused by the negligence of the defendant's servants in charge of the railway crossing; and the second asserted that, even though the plaintiff's daughter had been guilty of contributory negligence, if the jury found that after the railway's servants became aware of her perilous situation, they "failed to make proper and reasonable exertions whereby her life could have been saved," he was entitled to recover. The jury in obedience to the court's instruction found for the defendant, and from the judgment entered on the verdict in its favor, the plaintiff took the present appeal.
It was not contended by the counsel for the appellant that the servants of the appellee, who were in charge of the train which struck and killed his daughter, were guilty of negligence, or that she had not been guilty of contributory negligence, at the time of the accident. The alleged negligence upon which the plaintiff sought to recover was that attributed to the gatekeeper at the crossing, in failing to properly warn the daughter of the approaching train after he saw her put herself in a place of danger.
The only exception appearing in the record was taken to the court's action upon the prayers offered at the close of the case. As the granting of the defendant's prayer taking the case from the jury necessarily involved the rejection of those of the plaintiff, they need not be separately considered by us, but all of the prayers can be disposed of together, as presenting the opposing views of a single contention.
The material facts testified to on behalf of the plaintiff, which for the purposes of this inquiry must be taken to be true are as follows: On May 5, 1909, the appellant's daughter Ellen, then a little over 12 years old, and her half-sister, Mary Humphreys, then 16 years old, were going together northerly along Main street in the town of Northeast in Cecil county, with the intention of crossing the railway tracks of the appellee at their intersection with that street, where there was a public crossing provided with a safety gate on each side of the tracks. When they reached the crossing, they found an engine shifting cars across the street on one of the tracks and the safety gates lowered on both sides of the tracks. They stood on the street outside of the gate on the south side of the railroad until the shifting of the cars ceased. At that time the shifting engine was at rest with its front portion on a part of the crossing. Without waiting to be assured of clear tracks by the raising of the safety gate in front of them, the two girls went under or around the end of the lowered gate and attempted to cross the railway. There were four parallel tracks at that point. The girls crossed in safety the first one, on which the shifting engine and cars stood, and also the one beyond it, but when they reached the third track a freight train came along on it at a rapid rate of speed. Miss Humphreys, by quickly jumping back, saved herself from injury, but the appellant's daughter was struck and killed by the locomotive of the moving train. Miss Humphreys testified that while she and her companion were still outside of the safety gate, before they started across the railway tracks, they both looked and listened for trains, but neither saw nor heard any. She said they looked in both directions and that their view was unobstructed up toward Elkton, but they could not see in the other direction--the one from which the train came upon them--because the view was obstructed by the tender of the shifting engine with the cars attached to it, and also by some cross-ties piled between the freight house and the crossing. She did not say that they looked or listened again for trains after they had passed the shifting engine, where they could have seen the coming train if they had looked for it. On the contrary, when she, having testified that they looked before they started across and that they were standing outside of the gate at that time, was asked if that was the only time they looked, she repeated the statement that they looked before they started across, and that they could not see because of the shifter and the ties. The same witness...
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