Western Maryland R. Co. v. Kehoe

Decision Date17 June 1896
Citation35 A. 90,83 Md. 434
PartiesWESTERN MARYLAND R. CO. v. KEHOE.
CourtMaryland Court of Appeals

Appeal from circuit court, Baltimore county, in equity.

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

Defendant's brakeman who had charge of the car which ran over plaintiff was not bound to anticipate the possibility of any one lying on the track, or between the tracks, 8 or 10 feet beyond a crossing, and it was not negligence for said brakeman not to have looked for or seen plaintiff lying at that point.

Plaintiff offered the following five prayers: "(1) If the jury find that the plaintiff, on the night of the accident, was proceeding to his home along the county road, driving his horse and buggy, and that before attempting to cross defendant's railroad he slowed up his horse to look and listen for trains on the railroad, and that he neither saw nor heard any cars or locomotive near the crossing or in motion, and that while attempting to cross the first or main track of defendant's road his buggy was struck by a car which had been detached from the engine, and was running down that track by its own momentum, and upon which no light was visible to plaintiff, and that he was thereby thrown from his seat, upon and between the rails of defendant's switch or second track, a few feet from the traveled way, where he lay stunned and unconscious, and was immediately thereafter run over and his leg crushed by cars of the defendant which had been likewise detached and started into the switch at the same time the other car was running down the main track; and if the jury shall be of opinion, from all the circumstances that the injury was caused by a want of ordinary and proper care on the part of defendant, its agents and servants, and without any fault of the plaintiff contributing thereto,--then the plaintiff is entitled to recover. (Refused.) (2) If the jury shall find that the plaintiff, on the night in question, while proceeding to his home, and driving his horse and buggy, before attempting to cross defendant's railroad, slowed up his horse to look and listen for trains on the railroad, and neither saw nor heard cars or locomotive near the crossing or in motion, and that seeing no danger, he started forward, and as the horse was on the point of reaching the first or main track a car of defendant's slid down the track, which had been detached from the engine, and which up to that moment had not been seen, and running by its own momentum, and that at the same time the horse swerved and dashed against a signal post standing in the edge of the road a few feet from the track and that the plaintiff was thereby thrown from his seat, and fell upon and between the rails of defendant's second track, a few feet from the traveled way, where he lay stunned and unconscious, and was immediately thereafter run over and crushed by defendant's cars, which had likewise been detached from the engine, and allowed to drift down the switch by their own momentum; and if the jury shall be of opinion, from all the circumstances, that the injury resulted from a want of ordinary and proper care on the part of the defendant, its agents and servants, and without any fault of the plaintiff contributing thereto,--then the plaintiff is entitled to recover. (Refused.) (3) If the jury find that upon the night of the accident a burden train of defendant's left Baltimore about 7:18 p. m., and reached Howardville about 10 p. m., where the railroad crosses a county road at grade; and that the bulk of the train was left on the main track, some distance east of the crossing, and the engine proceeded beyond the crossing to a switch, which it ran back upon, and coupled to a number of cars standing on said switch, which it proceeded to haul westwardly beyond theswitch, and from that point proceeded to throw the rear car on the main track, and the others on the switch by the movement described by the witnesses; and if they shall find that, while said engine and part of the train was west of the crossing, the plaintiff on his way home upon the county road approached the railroad, and that he paused, or slowed up his horse, to look and listen, and that he neither saw nor heard any cars near the crossing or in motion, and that he thereupon attempted to cross, and was suddenly struck by a car of the defendant's, on which no light was visible to the plaintiff, running against the right side of his buggy as he was at the main track, and that he was thereby thrown from his seat, upon and between the tracks of the switch, where he lay stunned and unconscious, and was immediately run over and crushed by the cars of the defendant moving along said switch; and if the jury shall be of opinion, under all the circumstances of the case, that the injury complained of resulted from a want of ordinary and proper care on the part of the defendant, its agents and servants, in the management of its cars, and without any fault of the plaintiff contributing thereto,--then the plaintiff is entitled to recover. (Refused). (4) Even though the jury believe that the plaintiff was guilty of a want of ordinary care and prudence in crossing or attempting to cross the defendant's tracks under the circumstances testified to before them, yet if they further find that the defendant, by its servants and agents could have avoided the injury complained of by ordinary care in the management of its cars, after they saw, or by the exercise of ordinary care might have seen, the plaintiff lying in the track in the position described by the witnesses, then the plaintiff is entitled to recover. (Granted.) (5) If the jury find for the plaintiff, they are to consider, in estimating damages, the health and condition of the plaintiff before the injuries complained of, as compared with his present condition in consequence of said injury; and whether said injury is in its nature permanent; also the physical and mental suffering to which he has been subjected by reason of said injury; and they are to allow him such damages as, in the opinion of the jury, will be a fair and just compensation for the injury which the plaintiff has sustained. (Granted.)"

Defendant offered the following prayers: "(1) The defendant prays the court to instruct the jury that according to the uncontradicted evidence the plaintiff, by his own negligence contributed directly to cause the accident complained of; that he has offered no evidence legally sufficient to entitle him to recover in this case; and that upon the pleadings and evidence their verdict must be for the defendant. (Refused.) (2) Defendant prays the court to instruct the jury that the plaintiff is not entitled to recover in this case, because upon the case made by the evidence no ground of action has been shown, and their verdict must be for the defendant upon the pleadings and evidence in the case. (Refused.) (3) The plaintiff is not entitled to recover in this action, and the verdict of the jury must be for the defendant, because the evidence of the plaintiff shows the negligence of the plaintiff directly contributed to the accident which caused the injury complained of. (Refused.) (4) It was the duty of the plaintiff, if he was approaching the crossing at a high rate of speed, to stop, look, and listen before attempting to drive across defendant's tracks, and inasmuch as, according to the undisputed evidence in the case, he drove across the tracks without stopping, he is not entitled to recover in this case, and the verdict of the jury must be for the defendant. (Refused). (5) If the jury find from the evidence that on the evening when the accident complained of in this case occurred the plaintiff was riding in a buggy; that he and his two brothers (the latter in another buggy) were driving along the Reisterstown turnpike in the manner testified to by the witnesses Ryland and Seitz; that they all then drove violently down the hill to the crossing at Howardsville, where, by reason of his unduly rapid and careless driving, plaintiff's horse swerved towards the left out of the road, and brought the left hind wheel of his buggy into contact with the signal post mentioned in the evidence, tearing the rim and spokes from the wheel, causing that side of the buggy to fall, and throwing the plaintiff out upon the side track, where he lay unconscious and unseen upon the track some ten feet from the side of the county road until he was run over by defendant's cars as they were being drifted back into said side track,--then the plaintiff is not entitled to recover in this case, and their verdict should be for the defendant upon the issues joined in this case. (Refused.) (6) That it was the duty of the plaintiff, before attempting to drive across defendant's tracks, to look and listen for approaching cars, and either to stop his vehicle entirely, or so far reduce its speed as to enable him to obtain the full use of his sight and hearing unimpeded by the movement or noise of said vehicle; and if they find that the [plaintiff] failed to do this, but drove rapidly across the track, and that his vehicle was struck by one of defendant's cars, and himself knocked out and run over by the cars moving on the side track,--then the plaintiff is not entitled to recover upon the issues joined in this case, even though the jury find further that the cars were being moved without the showing of any light or the ringing of any bell to give warning of their approach to the crossing. (Refused.) (7) To entitle the plaintiff to recover in this case, the jury must be satisfied from the evidence no only that the defendant company was guilty of negligence in the handling and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT