Baltimore & Ohio Railroad v. State

Irving, J., delivered the opinion of the Court. On the evening of January 21st, 1890, I. E. S. Good was hilled near the corner of Ostend street and Warner street — both public streets in the City of Baltimore. This suit is brought in the name of the State, (for the use of his widow and child,) under Article 67, sections 1 and 2, of the Code of Public General Laws, against the appellant, upon whose railroad he was killed; and as is alleged, by the negligence of its operatives. The double tracks of the main stem of the Baltimore and Ohio.

Railroad Company run in the centre of Ostend street by permission of a city ordinance. It-crosses Warner street; and near that crossing, and a few feet from Warner ⁵²⁸ street sidewalk, was a switch, used for the purpose of changing the trains from the north track to the south track when it might he necessary. This switch was worked hy a lever from a tower house three hundred and seventy-five feet from the switch, off to the east. It is admitted that there was no light at this switch.

At the Warner street crossing the appellant had placed safety gates as required hy the ordinances of the city, and had also placed a watchman at the gates to attend to the working of them. This watchman had a watch-box near hy. The arm of the gate reached across the sidewalk and fourteen inches further, and near the end of it was a telegraph pole, around which was a path that extended across to Ostend street. The theory of the plaintiff is that the gates being down, Good followed the path around the telegraph pole, and, crossing to Ostend street, was caught in the switch and held' by the foot until the train of the appellant, moving eastward, passed over and killed him.

To sustain this theory, the plaintiff proved that when Good was found he was not quite dead, but was unconscious; that one leg was attached to his body but had the heel crushed; that the man was disembowelled, and the other leg was cut off and the shoe and stocking torn from the foot; and that blood and flesh were scattered over the track and rails at or near the switch, and that some flesh wras in the switch. Plaintiff’s witness Schneider, (who had testified to seeing the shoe which had been cut off on the right side of the track going west, and that the other was on the foot of the leg that was taken by the train to the frog in front of Mike Kelley’s, where it was taken out and put in a box: and that this frog was about seven yards west of Warner street; and that he heard Mr. Good cry, Oh! my! Oh! dear, which called his attention to the accident,) was asked on cross-examination, “Did you or did you not tell officer Gill that you did not ⁵²⁹ see the accident,, as you were asleep at the time in the signal tower?” To this he answered, “No sir. I can -prove it by the two operators; and furthermore I, heard one of the operators say late in the same night when we were sitting there and eating lunch; that he thought there was something wrong, because he could not get the switch closed. ” To this answer the defendant objected, and asked the Court to rule it out; but the Court refused to do so, and admitted it as evidence.

Whereupon the appellant excepted, and the Court signed the same as his first exception. The second exception presents substantially the same question. Witness Reeside, who was produced by the plaintiff, Avas asked by plaintiff’s counsel this question : “Tell the jury Avhat Mr. Stevens told you, if he told you anything, and Avhat he told you about the working of the sAvitch that night.” The witness answered: “I asked him next day, going up to the watch-house, how the switch pulled. I asked him if it did not pull a little stiffer than they usually had pulled, and he said yes.” To this question and answer the defendant objected, but the Court overruled the objection, allowed the question to be put, and the answer to go as evidence, and the appellant took the second exception.

The appellee admits that it was error to admit this question and answer, and the voluntary and unresponsive statement in the first exception, at the time they were propounded and answered; but he contends that the erro.r Avas not a reversible one because subsequently Stevens Avas called by the appellant, and the jury had the benefit of his denial of any such statements, and therefore the exception should not be maintained. Reliance for this contention is placed upon Wyeth vs. Walzl, 43 Md., 430 , which case, counsel for appellee insists, decides the identical question in his favor. In this he is mistaken. There is a marked distinction in the two cases.

In the case at bar plaintiff is relying upon the declaration of ⁵³⁰ the switchman Stevens to prove that the switch did work hard; to raise the presumption that the deceased was caught in the switch, and held until killed; and he is relying on the proposition that he could have used these declarations of Stevens hy way of impeaching him after he had testified for the defendant, and that, therefore, there was no ground of reversal, because improperly admitted, when admitted. These declarations were purely hearsay as offered and not part of the res gestae, and therefore inadmissible as affirmative proof. Dietrich vs. Baltimore and Hall’s Springs Railway Co., 58 Md., 347 . And if' Stevens could have been asked by way of laying foundation for impeachment, if he had made these statements, they would only have been admissible as tending to discredit and impeach Stevens; and would not have been- evidence as tending to establish the fact that the switch did work hard.

This Court expressly so decided in Mason, et al. vs. Poulson, et al., 43 Md., 176 , where the Court said that in no instance had it been held to authorize such evidence to be treated as anything more than evidence going towards discrediting the testimony of the witness. Were it otherwise the result would be the admissibility, in an indirect way, of the loosest and most unreliable hearsay. The reason for such ruling rests on the principle stated by Mr. Justice Buller so strongly and curtly that “the first speech being without oath, another oath, that there was such speech, makes it no more than a bare speaking, and of no value in a Court of justice.” Buller’s N. P., 294; 1 Greenl. Ev., p. 172, and note.

The evidence admitted in Walzl’s case cited by appellee’s counsel, was not hearsay and the case is not in point. There the plaintiff testified to the payment of a sum of money to a third person, and with that statement produced the third person’s receipt which was admitted. The Court held that it was wrong to admit that receipt when offered in conjunction with the statement of the ⁵³¹ plaintiff that he did pay the money; but that as the giver of the receipt was afterwards sworn, and stated that the money was not paid, it was competent to offer the receipt in reply to his statement. It not only contradicted the witness, but was written evidence that the money was paid, and would be conclusive of the fact of payment unless the witness could prove it was a felony or otherwise explain its being given without the money being paid, which it admitted was done.

The statement of the witness in the first exception was not responsive to the question asked on cross-examination, and bore no relation to the subject about which he was asked. It was voluntarily obtended, by an evidently adverse witness, and the appellant had the undoubted right to ask, as he did, for it to be stricken out and excluded. 1 Greenl. Ev., sec. 468; Mayfield, et al. vs. Kilgour, et al., 31 Md., 243 . By objecting to its being stricken out, and after-wards relying on the testimony, the plaintiff made it his own proof; and, as to the second exception, the proof, objected to was offered in chief, of a statement made by the switchman the next day after the accident.

By no authority can the action of the Court, admitting these statements of the witnesses be justified. The ruling was manifestly erroneous. If these declarations of the switchman Stevens (which he denies) were admissible to show that the switch worked hard, they might tend to prove that there was a possibility that the accident occurred, as is supposed by the plaintiff; but it would not establish the fact; for “in matters of proof we are not justified in inferring from mere possibilities the existence of facts.” Baltimore and Ohio Railroad Co. vs. State, use of Savington, 71 Md., 599 . “A wild speculation as to how and from what cause the accident occurred can not be allowed to stand for proof, or be made the basis of a verdict in favor of the party upon whom the burden of proof lies. ” Balti ⁵³² more and Potomac Railroad Co. vs. State, use of Abbott, ante page 158. Excluding these statements attributed to Stevens, the plaintiff'offered no evidence tending to show in the slightest degree how the deceased was killed.

True, there were some pieces of flesh in the switch, but they were not shown to he parts of the foot; and the heel was mashed up, and the leg down the inside of it, and flesh and blood were scattered all around; and how he came to be there to he killed, and by what negligence of the defendant he was killed, the plaintiff literally offered no proof; his theory was simple speculation unsupported by evidence; and if at the conclusion of his proof, and resting his case, the defendant had asked the Court to take the case from the jury for the want of legally sufficient evidence to sustain it, such prayer should undoubtedly have been granted. Without doing so, however, the defendant offered several witnesses in defence, and among them the conductor Malone, who was the only witness that saw the accident and knew how it occurred. And the appellee’s counsel frankly states that he relies largely on Malone’s evidence to sustain his suit. Without Malone’s evidence the case would be exactly covered by Northern Central Railway Co. vs. State, use of Burns, 54 Md., 113 ; State, use of Miller vs. Baltimore and Ohio Railroad Co., 58 Md., 221 ; State, use of Barnard vs. Phil., Wilm. & Baltimore R. R. Co., 60 Md., 555 , and Baltimore and Ohio Railroad Co. vs. State, use of Allison, 62 Md., 479 .

We will now consider whether Malone’s testimony helps the plaintiff’s case and gives him better standing-before the Court and jury. He was the conductor of the train at the time of the accident, and says he was standing on the rear end of the caboose, the signal lights of which were both burning. He had a white light in his hand. ciThe hrakeman was between the tender and caboose. After he got west of the switches, ⁵³³ as soon as he saw he had passed the west-hound switch, he gave the engineman a cross light to stop, and the switches were thrown from the tower; he told by the light changing from green to red; he waved