Baltimore & Ohio Railroad v. State Ex Rel. Black

Pearce, J., delivered the opinion of the Court. This is an action brought in the Circuit Court for Freder ⁶⁴⁴ ick County in the name of the State for the use of the widow and children of Henry S. Black, against the Baltimore and Ohio Railroad Co., for the alleged negligent killing of said Henry S. Black. The case was removed for trial to the Circuit Court for Washington County where a verdict was rendered by a jury in favor of the equitable plaintiffs for the sum of $9,249, proportioned by the jury under the statute, in their discretion, among the equitable plaintiffs. Judgment was entered upon this verdict, and from that judgment this appeal is. taken.

The record contains thirty exceptions noted by the defendant. Of these, twenty-eight relate to the admission of evidence; the twenty-ninth is to the overruling of defendant’s special exceptions to the plaintiff’s first prayer, and the thirtieth to the granting of the plaintiff’s five prayers, and the rejection of the defendant’s eight prayers. The case is unusual; in two respects; first in that no one actually witnessed the accident, and therefore no one can testify from actual knoivledge as to the conduct of the deceased at the time of the accident, or as to its cause; and second, in the peculiar and extraordinary character of what may be termed the physical evidence tending to show how the accident was occasioned. The question of the defendant’s alleged negligence and of the causal relation of such negligence to the death of Henry S. Black depends upon principles firmly established in this State, but in order to an intelligent understanding of their application, it will be necessary to state the facts as they appear in the record, with some fullness.

As the prayers refer to the pleadings, it should be stated in limine, that the nar. contains two counts, each charging that the defendant so negligently operated and managed a certain engine and train of cars running upon its tracks, as to c.ausethe death of the deceased while driving in his wagon upon a public highway, and while using due care and caution on his part. In each count, the particular manner in which the death is charged to have been caused is, that “defendant negligently and recklessly forced and drove said engine and cars upon, over- and against the said Henry S. Black." ⁶⁴⁵ The deceased was a farmer forty-three years of age, an industrious, exemplary man, in good health and in possession of all his faculties. He lived at Buckeystown about a mile from the crossing at Lime Kiln station on the B. & O. R. R. where he was killed on December 19th, 1906, about 6:35 in the evening. Lime Kiln station is about six miles south of Frederick.

About four o’clock that afternoon he called at the . office of Wm. J. Grove at Lime Kiln station to see Mr. Grove’s father, but not finding him there, he told Wm. J. Grove he was going to Frederick, and would stop on his return from Frederick. Otis Smith was at Lime Kiln station that evening about six o’clock.

He left there about 6:20 to drive to his home, and a few moments later met Mr. Black driving towards the station. This is the last time he is known to have been seen alive by any one. To reach this station, he had to leave the pike, and go north on a county road, the distance from the pike to the crossing at the R. R. station, being about 800 yards, and according to Smith’s testimony Black was about 200 to 300 yards from the railroad crossing when they met. He also testified that when the train passed Lime Kiln station, he had passed the crossing next below towards Baltimore, about 500 yards distant, and that he saw the engine, “and the only way he could designate it was by the sparks flying out of the smoke stack.” Wm.

J. Grove testified that the evening of the accident was very dark and foggy; that at the time of the accident he was sitting at his desk in his office on the north side of the railroad 50 or 60 yards east of' the crossing, when he heard a crash, and thought the train had jumped the track, but it kept on going and did not stop, thundering by at a rapid rate. He stood some little time at the window to see if the train would stop, and then walked back to his seat, when some one rushed in and said a man was killed, and he said he would bet it was Black. He said he heard the train coming and a few' seconds later, about the time it reached the crossing, he heard the crash; that as soon as he learaed a man had been killed ⁶⁴⁶ he went out and found Black’s body lying on the platform close by the target pole, within a foot of the west end of the platform, and right close to the south side of the south track, with his head to the east, his head mashed, and his head and body covered with flour; that the wagon was right up against the target pole, as if locked on it, the left wheels next the track being smashed to pieces, but the wheels on the other side uninjured; that seeing the wagon was liable to occasion further danger in its position, he telephoned first to Frederick Junction and then to Riehl’s Mill to stop the train; that they had killed a man, and that he caught and stopped the train at Riehl’s Mill, within two or three minutes after the accident. He said he could see a train from his office window at a distance of half a mile, and could hear the whistle or bell at the signal post 400 or 500 yards west of the crossing, but that he heard neither whistle nor bell on that occasion.

He testified that Mr. Black had in his wagon a sack of flour and a couple of pairs of boots which were scattered over the platform. Randolph Crampton, colored, was going that evening from Buckeystown east to Lime Kiln station, and was walking on the south side of the track as the train passed him 300 or 400 yards east of Lime Kiln station. He said it was running very fast and did not whistle or ring either for Lime Kiln crossing or the next crossing east, but he did not see whether there was. a head light on the engine. Earl Bowman, colored, was walking west on the platform at Lime Kiln station at the time of the accident, and he testified as follows: “At the time, I was going west down the platform in front of the passenger station, I saw a train passing the station. * Question.

Where was this train when you first saw it? Answer. It had not got to the station yet. Q. About how far was it from the station when you first saw it?

" A. Twenty feet, something like that. Q. Did you see Mr. Black? A. No sir, I did not see him. Q. What did you see after the train passed the crossing? ⁶⁴⁷ A. After the train — before the train got to me, I seen the wheel coming on the platform.

Q. Before what part of the train got to you? A. The engine. Q. You say you saw a wheel coming towards you? A. Yes sir.

Q. How far did the wheel come towards you, and how far were you from the wheel when you first saw it? A. I was not very far from it, over on the side of the banisters. Q. What banisters? A. On the side platform.

Q. Tell the jury where those banisters are located with reference to the track? A. They are on the right hand side. Q. The right hand side of what? A. Going up the platform.

The banisters are along the edge of the platform next to ticket Office. Q. Which way was the wheel coming, east or south? A. Coming east, the way the train was coming. Q. What kind of a wheel was it?

A. One of the wagon wheels. Q. How is it about that crossing with reference to being dark or light? A. It is pretty dark around there. Q. How did you find out where this wheel came from, and if so, how did you find out?

A. I found out after I went down there and seen the wagon and the man lying there. The wagon was tangled up into the signal post. This was about five minutes after the train passed. I saw the horse after the train passed standing between the two tracks with his head to the east.

The preceding part of this witness’ testimony has been given just as it fell from his lips, because of its importance. He further testified that the night was dark and foggy, and that he did not see any headlight on the engine, nor did he hear any whistle or bell as the train approached. On cross-examination he testified that he did not know the length of the railroad platform, but he was “a right smart ways down from the station;” that he did not look to see whether there was a headlight, and could not say whether there was one or not. ⁶⁴⁸ Bertha Taylor, colored, testified that she lived at Lime Kiln station, and at the time of the accident was going to Mr. Groves’ store for provisions. She said: “I was going out where old man Groves is, and I saw the wheel coming down the platform, and I seen this passing train, and I said to myself.” Q. Tell what you saw?

A. I saw the rim on the platform coming down. Q. The rim of what wheel? A. Why, on the platform, the rim that goes round the wheel. Q. What wheel are you referring to?

A. I do not know what wheel. I guess it was off the wagon. I was on my way to Mr. Groves’, and as I came out of the gate I saw this wheel coming down the platform facing me going to the switch, and then the freight came along, and I was about twelve or fourteen inches from the railroad, going to the switch, and I stepped aside down the bank. I did not hear any bell or whistle, or see any headlight.

I was going towards the train. She said she did not see the engine until it was right on her; that she was on the track “and had not got to the platform.” It appears from the testimony of Mr. Plummer a civil engineer, and from the scale of the blue print, made from his measurements of the locality, that Mr. Groves’ store is ióoor 170 feet east of the crossing, and that the station platform extends easterly 30 or 40 feet beyond that store. Albert Speacht, living at Lime Kiln, about twenty-five feet from the station, was in his house stitting by the stove, at the time of the accident, yet did not hear that train at all when it passed. William M. Parlett testified for the defendant that he had been continuously in its service for 25 years and running an engine for 21 years; that on the evening in question he was running freight No. 94, known as the fast freight from Brunswick to Baltimore; that the train was composed of the engine and twenty-seven freight cars and a caboose; that the head light of the engine was lit when they left Brunswick, when they passed Lime Kiln station, and when they stopped at Riehl’s Mill, and received the message that a man had been killed at ⁶⁴⁹ Lime Kiln; that the train was going about 35 miles an hour when it passed Lime Kiln.

He said, “When passing Lime Kiln, and before reaching it, I was on the lookout as engine-man of that train, and my engine did not hit anything at Lime Kiln. I know this, because there was no mark or trace of anything about the engine, and nothing seen on the track as I passed there. If there had been anything on the track I would have seen it, and if I had struck anything at that crossing I would have known it, because if you strike anything at all, you see it, and you feel a jar of some kind. If my engine going at the rate of 35 miles an hour, .had struck a buggy and horse, it would throw them a good distance.

It would knock them away from the track, fifteen to twenty yards, probably more. I blew the whistle for Lime Kiln station at the whistle post from 300 to 500 yards from the crossing. * * * At Riehl’s Mill, where we heard of the accident, we all went and examined the engine very closely, and we could not find a mark or trace or nothing about the engine. The fireman, the flagman and myself did this. We did find other evidence that my train had come in collision with something, and this was on the -first and second cars from the rear and the caboose.

The first and second cars from the rear end were scratched all along, just above the trucks of the cars. These scars were not there before we started. The caboose was scratched and there was a small hole right near the center of the caboose. The marks on the two cars and the caboose were on the right side going down.

We made an examination of all the cars on the whole train, and we did not discover on any other part of the train, the tender, locomotive, or any other cars, any evidence whatever of collision. The usual speed of my train is thirty to thirty-five miles an hour and it is seventeen miles from Brunswick to Riehl’s Mill. I left Brunswick about 6 o’clock.” On cross-examination this witness said: “The head light was a coal oil lamp in good condition. I saw the reflection of the head light every place we stopped, and all along the road. * * * A head light will not throw the light over a couple ⁶⁵⁰ of feet from the side of the track.

When I went by Lime Kiln the light only enabled me to see two or three feet from the track. The hole in the caboose was on the right hand side about four or five feet from the ground. It was a mark knocked in like something hit it. We had torches there, but I just disremember now what kind of a hole it was.

I do not know whether the hole went clear through or not.” The flagman, Jacob M. Dicus, testified that there were 27 cars in that train, averaging about 36 feet in length; the engine and tender about 72 feet, and the length of the train over 1,000 feet. He said: “The whistle was blown as we come along out of the cut about 500 yards west of Lime Kiln. I do not remember whether the bell was rung for the crossing, but I heard the whistle distinctly. At Lime Kiln crossing I was riding on the right side of the caboose in the rear of the train looking out of the window; we have a bunker that we sleep on,'and I was on my knees with my arms projected on the window sill, looking around as we come round this curve to see if there was anything hot * * * and just as we come to that station, about two or three cars before the end, I saw some sparks flying; I did not know what it was, and I just got my head inside, when the knock came on the caboose, knocking a hole in the side about three fingers wide. * * This occurred right at the crossing.

I got up and went out on the rear platform and looked, and did not see anything wrong and I went in and laid down again. At Riehl’s Mill we stopped and a helping engine brought us a message to examine our train as it had struck a wagon at Lime Kiln and the man was not found yet.” This witness corroborated the engineer in detail as to the examination of the train then made, and its results, adding this, "another thing I forgot to tell you, that the car next to the caboose was covered with flour, and a piece of flour sack was hanging on the side. * * I know the hole in the cab was just made, because I am with that day after day. * * * I saw the fire come from under the wheels of the first and second car next to the caboose, and I jumped in. I thought it was the brake wtong or some ⁶⁵¹ thing. I saw it under the second car from the caboose first, and then the blow came on the caboose right away in an instant almost.

This was right at the crossing.” Buchanan Hyatt, the conductor, who has been so employed on that route twenty-two years, testified that the speed of that train was thirty to thirty-five miles an hour, the fastest freight they had, and that the whistle was sounded for Lime Kiln station that night at the whistling post, but he could not say as to the bell. They received a message at Riehl’s Mill to examine the train, and especially the engine, as a horse and wagon had been struck and a man killed at Lime Kiln. He confirmed in every particular the evidence of the engineer and flagman as to the results of this examination, saying, “The first mark was on the second car from the caboose like a shaft or something would scrape along the car. The first car from the caboose was marked deeper than the second car, and on the nuts were bits of bagging hanging there. * * * I was in the caboose when we passed Lime Kiln and heard a knock on the right hand side of the caboose near about the crossing.” On cross-examination he testified that the engine was eased up at the cut, and was shut off entirely at the crossing.

Raymond McClellan, the fireman, confirmed in all respects the evidence of the rest of the train crew. In addition he said, “I was ringing the bell going through Lime Kiln. I was ringing the bell as we passed the crossing, and I saw the head-light was on at that point. I was looking ahead and I did not see anything, and I did not hear the train strike anything.” Luther U. Feaga, a trackman, of the B. & O. R. R. was in the ticket office at Lime Kiln when this train passed at the time of the accident.

He testified as follows: “After the train went past, a stone came in the window and there was a racket, and as soon as the train passed I went out the door and found this man lying there. Probably one half the train had passed before there was any racket at all. * * * The stone came in the window after the engine had gone by, and ⁶⁵² afterwards the noise started up.” He then described the situation as follows: “I saw the man lying there and the wagon run up against the target pole, with the left wheels broken and the left shaft good. The two right wheels were good. Mr. Black had a scar on the back of his head and his lip cut a little * * * I went out directly after the caboose went past. * * * All but his feet were on the platform, and they were on the edge of the road.

His head was about fifteen inches from the edge of the platform, and the edge of the platform about two and a half feet 'from the nearest rail. Flour was lying on the platform and scattered all about.” This witness is confirmed as to the condition of the wagon by the photographs produced at the argument and used in the trial below. Victor Cook and John W. Fisher, both trackmen, were in the ticket office at the time with Feaga and gave the same general account given by him. The former was acting as agent and was putting the office money into a bag when the stone came through the window.

The engine had then gone past the window, how far he could not sdy. The stone looked like a piece of ballast. The next thing was “a fog rolled by the window which we found afterwards was flour. * * * I saw flour on the platform and also on the horse when I saw him later.” Fisher testified, “Sometime after the first part of the train passed by we heard a noise and flour sifted up against the side of the building. I could not say then what it was.” Frederick J. Gardner, another trackman testified that he was at the time on the north bound track about 200 feet from the crossing; that while there this train passed, and he heard some noise, and very soon after that the caboose passed him, and he heard Feaga call out that a man was killed.

On cross-examination he said when he heard the crash the caboose was near the crossing. He denied that he had said at the inquest that he had heard no crash or noise when the train was passing the station, and Mr. Grove, in rebuttal testified that he had so sworn at the inquest. ⁶⁵³ Having now summarized all the material evidence, the various exceptions to the evidence will be first considered. The ist, 2nd, 3rd, 5th, 7th, nth, 12th, 13th, 14th, 15th, 16th, 17th, 19th, 20th, 21st and 22nd exceptions are all urged in this Court solely upon the ground that the questions objected to were leading questions, but it does not appear from the record that this ground of objection was made in the trial Court, no specific ground of objection being there made. We think the objection to a question as leading should be made at the time it is put, and before it is answered.

Mr. Poe so states the rule in Poe’s Practice, sec. 261, and says, “The reason is that if such an objection had been made at the time the question was put, it could and probably would have been obviated, and it would not be fair therefore to spring such objections afterwards. This is especially the rule in cases where testimony is taken under a commission.” To sustain this text he cites Smith v. Cooke, 31 Md. 174 ; Jones v. Jones, 36 Md. 447 ; Kerby v. Kerby, 57 Md. 361 and Brown v. Hardcastle, 63 Md. 495 . Smith v. Cooke was a case where the depositions were taken under a commission, and Kerby v. Kerby and Brown v. Hardcastle were equity cases, where the rule is established. Jo'nes v. Jones was a case in the Orphans’ Court where the testimony was taken before lay Judges.

We have not found a case where the testimony was taken orally at nisi prius, in which this question has arisen, but we perceive no reason why the rule should not be the same in such cases, and Mr. Poe plainly lends his authority to this view in the citation above. These exceptions therefore are not tenable on that ground. In the recent case of Walker and Baldwin v. Frick, 106 Md. 619 , relied on by this appellant the objection was duly made in the lower Court, and the question objected to was a gross violation of the rule, as conveying, instead of asking, information, and directly pointing to the desired answers. Most of these questions objected to as leading in this case, relate to the blowing of the whistle, the ringing of the bell, and the presence or absence of a head light on the engine,, and are of a character in which the trial Judge must have a ⁶⁵⁴ large discretionary power to relax the rule when its strict enforcement would tend to exclude the truth.

These questions were put to witnesses who were in a position to see and hear, and it would have been difficult to put the questions in any other way to elicit an answer. The following will fairly illustrate this whole class of questions.” “Mr. Grove did you hear the whistle blow oil that approaching train that night?” ' “Did you hear the bell ring that night on that approaching train?’ ’ “Did you see a head light on this engine?” “State whether or not the engine had a head light on it?” In McKeown v. Harvey, 40 Mich. 226 , the Supreme Court of Michigan, Judges Campbell, Cooley, Marston and Graves, said, “A question to be answered yes or no is not necessarily objectionable as leading, especially if it could not well have been asked in any other way that would not have been open to the same criticism. ■ * * * Some discretion must be used on this subject, and over nicety is not conducive to convenience or justice.” See also 8 Enc. PI. & Pr. 80; 3 Jones on Evidence, 815; Chamberlayne’s Best on Evidence, sec. 641. There was grave error, however, in another respect in the. ruling on the seventh and eighth exceptions, which are among those excepted to as leading.

Wm. J. Grove, being on the stand, after testifying generally as to how far the sound of an approaching train could be heard by one at this crossing, and as to the effect of different atmospheric conditions, said that when he heard the crash, the sound came from the direction of the crossing. He was then asked, “Could you tell from the sound where the engine was at the time of the crash?” and the witness was allowed to answer over the defendant’s objection, his answer being “yes.” The next question was, “Where was it?” and the answer was “atthe crossing.” The purpose of these questions obviously was to sustain the allegation of the nar that the engine was driven over the wagon of the deceased, and rebut the defence that the only collision was .with the three rear cars. This is the vital point in the case, ⁶⁵⁵ upon which mere conjecture or opinion would be most injurious, and could not be allowed.

When it is remembered that Mr. Grove was then in his office 180 feet from the crossing, with closed windows, on a damp foggy night, which he testified seriously obstructed the transmission of the sound made by trains passing that station, it is perfectly plain that he could not testify from any knowledge as to where the engine was at the moment of the crash, and his answer represented either mere conjecture, or at most his opinion, neither of which can be admissible. This subject has been so recently and pointedly reviewed in this Court that no reference to authorities is required. This error alone would require a reversal. We come now to the second class of exceptions embracing the 4th, 6th, 23rd, 24th, 25th, 26th and 27th exceptions.

The 4th and 6th relate to the distance at which a man in a wagon close to the track at the station, could see an approaching train from the west, and how the dampness of the atmosphere would affect the sound of the train, and we discover no error in these rulings. The 23rd and 24th exceptions were taken to questions put to two witnesses, asking “what were Mr. Black’s habits with reference to being a careful and cautious driver or otherwise?” In American Straw Board Co. v. Smith, 94 Md. 19 , the action was to recover damages for an injury alleged to have been caused by the negligence of the driver of defendant’s wagon, and it was held that evidence that the driver was competent generally in that capacity, was not admissible, because, as Judge Fowler said, “The issue was did the defendant’s servant drive properly and with care on this particular occasion, and not whether he possessed competency and skill sufficient to have done so, if he had chosen to exercise his skill.” We cannot distinguish that case from the present in the application of the principle there decided. This question has been carefully considered by the Supreme Judicial Court of Maine and the conclusion reached sustains the view expressed in 94 Md. supra. In Chase v. Maine Central R. R. Co., 77 Maine, 62, it was ⁶⁵⁶ held that in an action for personal injuries received by a collision at a railroad crossing, evidence will not be received to show the general habits and character of the traveller for carefulness, as bearing upon the question of due care on his part, though the injuries occasioned death before he could tell how the accident happened, and no one saw him at the time of the collision.

Chief Justice Peters said: “The intestate’s sleigh collided with a train at a railroad crossing. He thereby received an injury and very soon afterwards died. He never was conscious enough after the injury to tell how the accident happened. No one was with him at the time.

No one saw him at the moment of collision. As evidence that he could not have been guilty of any negligence which contributed to the accident, witnesses who had been his neighbors for sometime were permitted to testify to their opinion of his general character for carefulness. We think this was overstepping the limit allowed to collateral evidence. We dare not abide by it.

Our belief is that such a rule would be fraught with much more evil than good. The best authorities clearly sustain the doctrine that the fact of a person having once, or many times, in his life done a particular act in a particular way, does not prove that he has done the same thing in the same way, upon another and different occasion. * * * If a man who is customarily careful were always so, there would be reason for admitting the evidence. But the issue is whether the intestate was careful in this particular instance — a fact to be, either directly or circumstantially, affirmatively proved. * * * The law imperatively demands that a traveller look and listen before crossing if there is any opportunity to do so. What did these farmers know about the intestate’s habitual care in that respect?

It is not a ground for the admission of this .evidence that the plaintiff can produce no other. It is neither of primary nor secondary importance — it is not evidence at all.” Adopting this reasoning, and following our own previous decision in 94 Md., we must hold there was error in the ruling on the 23rd and 24th exceptions. ⁶⁵⁷ The 25 th exception relates to an inquiry whether the deceased was a prudent and economical man, wasteful or careful of his means: This inquiry was relevant and material to the proof of pecuniary loss sustained by the premature death of the husband and father and there was no error in this ruling. Reference has already been made to the fact that when Coolc and Feaga were in the ticket office when this train passed, a stone came through the window.. While Cook was under cross-examination, plaintiff’s counsel asked him these two questions.

Q. “You heard the stone come through the window; and the engine was passing down the track and the train was passing? A. Yes sir. Q. And yet you did not hear the engine or any part of the front or the front of the train strike it? A. No sir, it did not.

It would be impossible because the engine had passed.” Thereupon the Court, on its own motion, .directed that the words, “It would have been impossible because the engine had passed,” be struck out of the last answer, leaving the answer to stand. “No sir — It did not.” The defendant objected to the striking out of these words, and the Court overruled the motion and struck out those words, to which action of the Court the 26th exception was taken. It is observable here that the words