Baltimore & Ohio R. v. State Ex Rel. Logsdon

Boyd, J., delivered the opinion of the Court. This is an appeal from a judgment against the appellant for the alleged negligence of its agents which resulted in the death of Henry T. Logsdon, Jr., the son of the equitable plaintiffs. The Cumberland and Pennsylvania Railroad Company has three tracks from Mt.' Savage Junction to Cumberland, which run through what is called the “Narrows,” a gorge in Will’s Mountain, near Cumberland. The appellant has an arrangement with that company by which it has the use of those tracks for the purpose of running its trains to and from Cumberland, which pass over the Pittsburg and Connellsville Railroad, now under the control of the appellant— the latter road connecting with the C. & P. R. R. at Mt.

Savage Junction.' The deceased was a trackwalker employed and paid by the C. & P. R. R. Co. and his duties required him to walk over the tracks between a bridge over Will’s Creek, which was east of Mt. Savage Junction and west of the Narrows, and what is known as the viaduct in Cumberland. He was required to inspect the tracks in his territory, examine the rails, remove obstructions, signal the trains if anything was wrong with the tracks or trains, see that switches were locked and do other things necessary for the safety of trains passing over the road. On the night of the accident, which occurred shortly after ten o’clock, he was engaged in his duties and ³⁶¹ about 9.50 o’clock stopped to eat his lunch at the office of the operator at Eckhart Junction, which is at the west end of the Narrows.

He remained there until ten o’clock when he went west, carrying a lighted lantern, his tool sack, hammer, spikes and a water bucket. He was killed a short distance east of the bridge over Will’s Creek at a point about half a mile west of Eckhart Junction and about that distance east of the junction •of the Pittsburg & Connellsville Railroad with the C. & P. R. R. The night of the accident, an engine of the appellant, known as No. 1717, was hauling one of its freight trains from Connellsville to Cumberland, and when it reached Ellerslie, a village about two or two and one-half miles west of Mt. Savage Junction, the train parted leaving the rear end near Ellerslie, and the engine with the rest of the cars went on towards Cumberland. The operator at Mt.

Savage Junction tower noticed that the train was broken, as the engine and cars attached passed his tower. He gave with his lamp the broken train signal, but the engineer could not see it. He telephoned to the operator at Eckhart Junction to give that signal, which he did, and the train was stopped and the engine went to what is called Red Rock switch-box, which is at the east end of the Narrows. The trainmaster of the C. &P. R. R., who.had control of the running of trains between Cumberland and Mt.

Savage Junction, instructed the operator at the latter place to order the engine to go back to Ellerslie, after the rest of the train, on what is spoken of as the middle track. Pie did so and the engine crossed over from the third to the middle track, running backwards to Mt. Savage Junction, and the appellees contend that while so running that engine killed young Logs-don. The track furthest to the right in going west from Cumberland is the one used for west bound trains; the middle track- is used for east bound passenger and fast freight trains, and the third is the one generally used for east bound slow freight trains.

There are eleven bills of exception in the record—the first six present the rulings of the trial Court in refusing to exclude ³⁶² evidence objected to by the defendant; the seventh embraces a prayer seeking to take the case from the jury at the conclusion of the plaintiff’s testimony, which was refused; the eighth and ninth are the exceptions of-the defendant to the refusal of the Court to admit an agreement between the C. & P. R. R. Co., and the P. & C. R. R. Co., in reference to the use of the tracks; the tenth was to allowing a witness to testify in rebuttal as to what the engineer said at Mt. Savage Junction about there being a light on the tender, and the eleventh includes the prayers. Four prayers were offered by the plaintiff, all of which were granted except the second, and the defendant offered ten, all of which were rejected excepting the fifth which was granted as modified by the Court. As the defendant proceeded with its testimony after the rejection of its prayer offered at the conclusion of the plaintiff’s evidence, it waived its exception presented by the seventh bill, and therefore it cannot be considered by us, but it renewed that prayer at the end of the testimony, and it presents the important question to be determined by us, namely, whether there was legally sufficient evidence of negligence on the part of the defendant, which caused the death of young Logsdon to be submitted to the jury.

The appellees rely on what may be classified into three items of evidence which they claim to have been sufficiently established to justify the ruling of the trial Court in rejecting that (the eighth) prayer of the defendant—running the engine westward on an east-bound track on a dark night, not having any light on the west end of the tender or giving other sufficient signals, and the failure of the engineer to see Logsdon or not to avoid the injury if he did see him. While we, for the purpose of giving these three items of evidence full consideration, will to some extent consider them separately, we will not overlook the fact that all of them are more or less connected together, and each must be considered in the relation it bears to the others. If it be conceded that engine No. 1717 did cause the death of this young man, it is clear that the mere running of the engine backwards, in a westerly direction on an east-bound ³⁶³ track, was not of itself sufficient evidence of negligence to justify a recovery—certainly not under the testimony in this case. The uncontradicted evidence is that a train going west was using the west-bound track—indeed the trainmaster testified that there were two trains standing on that track when he gave the authority to run the engine west on the middle track.

The engine could not go back on the third track by reason of the cars that were connected with it being there, and as the west-bound track was then in use by the trains entitled to it, the middle track was the one that would naturally and properly be used. The orders were given to the operator at Mt. Savage Junction and he could therefore keep that track clear—block out any east-bound trains until the engine cleared that track—and the testimony shows conclusively that in case of an emergency such as this, it was proper to use the east-bound track for this engine between Red Rock where it was and Mt. Savage Junction, where it would leave the C. & P. road, to go after the portion of the train left behind.

It must be conceded that although it is not negligence to use under such circumstances a track for an engine going in an opposite direction from that for which the track is primarily intended, it is the duty of the agents in charge of such engine to adopt all reasonable precautions to avoid injuring those who have the right to be, and may be, on the track. It is shown that Mr. Logsdon not only had the right, but it was his duty to be on or about that track, and therefore no negligence can be attributed to him merely because he was there, and the question must be determined from the standpoint of one rightfully on the railroad. When an engine is run backwards, under such conditions as this record discloses—over the track of another company on a dark night in a gorge of a mountain, and where the trackwalker and possibly other employees of one or both of the railroad companies are liable to be in the discharge of their duties—there unquestionably ought to be a light at the end of the tender, and if anyone, who is rightfully on the track, is shown to be killed or injured by reason of the failure to have such light or some sufficient ³⁶⁴ warning of the approach of the engine, the railroad company-may be liable, unless exempt because the negligence was that of a fellow-servant, or there was contributory negligence on the part of the person injured or killed, or there be some excuse recognized by the rules of law applicable to such cases. As the appellees contend there was legally sufficient evidence of the absence of a light, we will see what the record discloses as to that.

H. A. Duvall, who was a brakeman on the train to which the engine had been attached, was called as a witness for the plaintiffs. After the train separated he went from the part left behind to Mt. Savage Juuction and was there when the engine came back from Red Rock. He was asked whether he saw any lights or signals on the engine.

The defendant’s counsel objected to the question and one of the plaintiff’s counsel stated that “the offer was made in connection with the offer to show that at the upper end of the Narrows, about three hundred yards below the point of the accident, there was no light burning on the tender, and beyond the point of the accident at Mt. Savage Junction there was no light burning.” The Court then permitted the question to be asded and he replied, “No sir, none that I could see.” He also said “Whenever we are running backwards we generally have the lights on the rear end,” and in answer to the question whether that was the rule he said, “Yes sir, they are supposed to have a light.” He also said that the lanterns were in the engine, that he saw two, red and white, which was the usual number. On cross-examination he stated that the place of accident was in his judgment half a mile from Mt. Savage Junction, that he did not know whether there was any light there when the accident happened, or whether there was any on the tender.

He was called in rebuttal, and on being asked what he said to the engineer about the light, he replied, “I asked him, did he leave a light out, and he says yes, and I says, where is it now, and the light was setting in the engine, and I don’t just remember what he said to me about the light, but he says that he had taken the light off the end of the tank to see the man, that he didn’t have any torch.” On ³⁶⁵ cross-examination he was asked, “He told you that at the time of the accident, at the place of the accident, he had a light on the tender?” to which he replied, “Yes sir.” Adam Brown, who was the operator at Eckhart Junction, was also called by the plaintiff, and his evidence on that subject was as follows: “Q. Was there any light on the tender going west ? A. That I cannot say. Q. Did you see any light? A. I was engaged in taking the number, and if he had a light on I didn’t see it.

I was engaged in taking the number of the two engines, one going west on the middle track and one going west on the west-bound track. Q. You are trying to give a reason why you did not see it; did you (see) any light? A. I cannot say. Q. Can you say whether you saw it or not?

A. No, I cannot say whether 1 saw it. Q. Why can’t you ? A. I was engaged in taking those numbers. Q. Did you say you did not see any number?

A. I was looking at the number on the headlight.” He also said that it was his duty to take the numbers of the engines. That is all the testimony offered by the plaintiffs on this subject, excepting on the cross-examination of Mr. Jones, who was the switchman at Red Rock, he was asked, “Q. Do you know anything about the lights on the tender when they started out?,” to which he replied, “Now sir, I am not positive; I am not positive about the lights being on the tender, but I saw with my own eyes the fireman with one white lamp in between the firebox and the tender,” and on being asked “What was he doing with it?” replied, “I do not know what he was doing with it, that is something I could not tell. ” Matthew McMillan, the engineman, who was called by the defendant, testified that he saw the fireman take the lantern and put it on the rear end of the tender—that it was his duty to instruct him to do so, and “see that it was done beyond a doubt;” that after putting the lamp on the rear end of the tender he proceeded backwards. He also