Western Maryland R. Co. v. Kehoe

Decision Date22 June 1897
CourtMaryland Court of Appeals

Appeal from circuit court, Harford county.

Action by Lawrence Frank Kehoe against the Western Maryland Railroad Company for personal injuries caused by defendant's negligence. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, BRISCOE, ROBERTS, and BOYD JJ.

Charles Marshall, J. M. Marshall, Wm. L. Marbury, C. Bohn Slingluff and Wm. H. Harlan, for appellant.

Randolph Barton, Jr., Redmond C. Stewart, D. G. McIntosh, and S. A Williams, for appellee.


This is the second appeal in this case. The opinion of the court in the former appeal is reported in 83 Md. 434, 35 A. 90. The decision then delivered, as a matter of course, settled the law on the questions involved for all subsequent litigation in the case. The evidence, in some particulars, is different from that given at the for mer trial. We will refer to such portions of it as it is necessary to consider for the determination of the questions now presented. The plaintiff testified that he lived near Howardville, in Baltimore county; that on the 30th day of July, 1895, in company with two younger brothers, after driving to several places of resort, at some of which he drank considerably, on his way home he drove along Seven-Mile Lane to the place where it crosses the Western Maryland Railroad; that his two brothers were 20 or 30 yards ahead of him; that he slowed down to a walk, looked, and listened, but did not hear or see anything; that the night was pretty dark; he saw no car, and did not hear any alarm bell, or anything of the sort; that as you approach the crossing a large storehouse and cedar tree would strike your eye to the right before you reach the railroad track; that beyond the railroad to the right, towards Sudbrook Park, there is a growth of wood; that any cars on the track would be between him and the shade of the wood; that he started his horse across the track, and she (a mare) made a jump; he tried to stop her, and something struck his buggy on the right-hand side; that was the last thing he remembered, until next day, when he found himself in bed at his father's house, with his leg cut off; that the mare which he was driving was gentle,--a lady could drive her; that he had been drinking beer and whisky; that he had frequently drunk more, and it had never made him drunk. On cross-examination he said that he judged by the sound that his brothers were 20 or 30 yards ahead; that he could not see them. Thomas Kehoe, one of the plaintiff's brothers, testified that when they reached the railroad it was half past 9 o'clock at night, or ten; that he and his brother Bart were in one buggy, and the plaintiff in another; that they (Bart and himself) stopped at the railroad, but did not see or hear anything, and they went across; that the night was very dark; that at the railroad they heard no bell nor whistle, saw no light displayed, noticed none in any of the houses, nor any flagman, nor any light on the lamp-post; that he knew the plaintiff's horse; it was gentle. On cross-examination he said it was rather dark; that the moon had been shining, but it was about down, and it was rather cloudy. O'Boy testified that he was one of the crew of a freight train of the Western Maryland Railroad on the night of the accident, and was on the west end of the car as it was drifting on the main track towards the train standing east of the crossing, when the car struck a man's buggy right on the crossing,--a little on the east side; that the car was half over when the buggy was struck; that he saw a horse's head, and saw something fall out, that he took to be a cushion; that he did not hear any bell ringing; that, when the car drifted down until it was against the train, he got off and went back, and found the plaintiff lying on the track, with his face up, further away east of the crossing than he expected to find him; he seemed to be closer to the planking when he fell; that when he saw him he cried out, "Stop them cars, for God's sake!" that the car was west of the crossing, and that he tried to pull the plaintiff away, but could not, and was himself struck on the shoulder; that plaintiff was run over before he could get the plaintiff off; that he is still in the employment of the railroad; that it was a dark night, and he was on the end of the car further away from the crossing, and the light was with him, and when the buggy was struck the light was sitting on the coupling block in the center of the car; it was a box car, and higher than he could reach from where he stood,--eight or nine feet. On cross-examination he testified that the length of his car was 30 feet,--one of the small Western Maryland cars; that he saw the first buggy go by at a rapid rate; he was a car and a half away when he heard a buggy, and he tried to wind the brake chain, but it would not work, and the car ran on the crossing, and he saw a horse's head on the south side of the car; that he had heard the sound of a horse's hoofs, but did not hear anything else; that he had to look around and see the length of a car when he saw the horse's head; that the horse was going at a good gait, not walking; that the plaintiff fell about 5 feet east of the crossing, towards Baltimore; that "we [meaning brakemen] can stop three loaded cars, with a couple of good brakes, in forty or fifty feet"; that he could stop a single empty car much quicker; that when he went to Kehoe the car which ran over him was a car length off; that he found a broken flask by the side of the track, and there was a stain of liquor, which he supposed to be whisky. On re-examination he testified that, if the buggy had come straight down the county road, it would have struck the car. Sapp testified that he took beer with plaintiff about 9 o'clock on the night of the accident, and that the plaintiff was then "all right"; that the plank crossing between the railroad tracks was not the full width of the county road, and that there was a space of eight feet on each side of the plank crossing within the limits of the county road. There was other testimony tending to show that the county road was 30 feet wide, and that when plaintiff was run over he was lying within its limits. There was also other testimony that the plaintiff's horse was gentle. Several witnesses testified to the good character of the plaintiff for sobriety, and two physicians who attended him testified that in their opinion he could not have been intoxicated at the time of the accident. Atwood testified that he was a surveyor and civil engineer, and that he had made a plat representing the railroad station. He described the measurements on the plat. On cross-examination he testified that a person stopping on the county road 20 or 30 feet from the crossing, going in the direction which the plaintiff was driving, could see towards the west (the opposite direction from Baltimore) about 500 feet; that there was nothing to prevent him from seeing the track. or anything on the track, from that distance. He did not say that he could see that distance on the night of the accident, at the time it occurred; and he seems to have known nothing about the accident, or whether the night was light or dark. This testimony was before the jury, and it rested exclusively in their judgment whether they would believe it or not. If the plaintiff slackened his speed on approaching the crossing, and looked and listened, and heard nothing and saw nothing; if the night was very dark, and there was no light in such a position as would enable the plaintiff to see the approaching car when he looked; and if no bell was rung, or other signal given,--he certainly was guilty of no negligence in attempting to cross the railroad track. And if, under these circumstances, he was struck by the car, and thrown in an unconscious condition to the ground, and run over by another car under the circumstances described by O'Boy, the defendant was certainly responsible for the injury inflicted upon him. The evidence on these points was very materially contradicted by the testimony on the part of the defendant. But most undoubtedly the case could not be withdrawn from the jury on that account. The court cannot decide between opposing witnesses. The jury must determine questions of fact, and as said in Trust Co. v. Corner, 2 Gill, 427, "no action of the court should control the exercise of their admitted right to weigh the credibility of evidence." If the jury believed the evidence, it was competent for them to draw the inferences which we have mentioned. We shall refer to this matter again in another portion of this opinion, but we may as well say that it is no part of our purpose to make an abstract of the evidence, but merely to refer to such portions of it as will illustrate the prayers in the case.

The evidence for the defendant stated that an extra freight train, running without scheduled time, coming from Baltimore arrived at the Howardville station about 10 o'clock on the night in question; that the train stopped about a car's length on the east, or Baltimore, side of the crossing; that the engine was cut off, and it pulled up beyond the crossing, and was then backed into a siding on which five cars were standing; that the conductor of the train took the first and last car, and threw one of these cars on the main track, and let it run down towards the train, which remained standing to the east of the crossing; this was a box car; that three gondola cars were put back on the side track. Wildersin, the conductor, testified that, as he came down the siding towards the crossing with the engine and one car, he heard the...

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