Baltimore & Ohio Railroad v. State ex rel. Savington

Alvey, C. J., delivered the opinion of the Court. In this case the action is brought against the defendant, in the name of the State as plaintiff, for the use of the father whose son was killed by what he alleges to have been the wrongful act, neglect or default of the defendant corporation. Code, Art. 61, sec. 1., The defendant pleaded that it did not commit the wrong alleged; and upon trial there was a verdict for the plaintiff, and judgment thereon. The defendant has appealed.

The accident happened on the defendant’s road, at a point near Watersville, on the 23rd of August, 1888, about 1 or 2 o’clock in the day, and where no person, unconnected with the operation of the road, had a right to be. The boy who was killed, is represented to have been near or about 11 years old, and smart and intelligent for his age. The train by which he was killed was east bound, and was running on a down grade, at the rate of 30 or 35 miles per hour. It was somewhat behind time, and bore a signal for a following train on the same track.

It appears that the boy was hired to. a Mr. ^Fnglebee whose house was situated immediately on the north side of the road, the road having two tracks, and the south track being the one upon which the train was running that produced the accident. It was a passenger train*of seven cars. Just before the accident, Mrs. Unglebee sent the boy on an errand to the house of a neighbor, some three or four hundred yards distant, on the same side of the road as her own, but west from her house. When the boy started, he attempted to go up the tracks of the railroad, but Mrs. Unglebee, observing his course, called to him,' and forbade his going on the railroad, and cautioned him to avoid the danger of the cars.

The boy left the tracks of the road, and pursued his way on the north bank or side thereof; but on his return he got upon the tracks of the road, where he was overtaken by the train. Just east of and below the house of Unglebee ⁵⁹³ there is a private farm way, crossing the railroad tracks, with hars upon the south and gate upon the north side of the railroad; and the proof is, that from this crossing a train can be seen approaching from the west some six or seven hundred feet. The attempt on the part of the plaintiff was to show that the boy was struck on this crossing; but the attempt wholly failed. The only witness examined on the part of the plaintiff who saw, or professed to have seen, the actual occurrence of the accident, was Mrs. Uuglebee.

After relating the circumstances of starting- the boy on the errand, and her direction to him to get off the railroad tracks, she says, “the next time she saw him was when she heard the rush of the train going east, when she ran to the door to see what it was, and just as she first saw him he was on the front of the engine and revolving over to the side; he was being tossed up and scrambling with his hands; that she caught sight of the boy and the engine at the same time: That when she first saw him on the engine, being tossed from one side to the other, the engine, at that moment of time, was on the crossing below the house; there was a locust tree in the yard that obstructed her sight somewhat: the boy was thrown in the ditch below the culvert; that she, the witness, immediately ran to the boy, ■and brought him up in her arms and laid him on the porch, where he died in a few minutes.” She further states that there was no whistle blown from the train as it approached the crossing; “that when she first heard the rush of the train, she was at the back door, and ran to the front door; it did not take her a second to get there; that when she first heard the rush of the train it was opposite to her door; that the train was running at a high rate of speed, much faster than usual.” “ That while the boy was on the engine, it gave two little toots before he broke loose and fell into the middle ditch; that witness noticed, as the train passed, one of the men on ⁵⁹⁴ the engine sitting with his arm on the window, and thinks that he could have seen the accident." On cross-examination, this witness further stated, that the first sight she got of the boy, when she reached the door, “was a peculiar motion low down on the crossing, and he revolved up, and kept revolving up, on the engine; and can’t see any other way but that he was struck on the crossing; can’t say whether he was standing up or not when she first saw him; when she first caught sight of the hoy he was against the front of the engine and revolving around the side; he was right against the pilot." And further on, upon being questioned as to former accounts given of the occurrence, she says, “I did say to Mr. Hall, ‘ right out there (pointing to the tracks above the crossing and opposite to a point midway between the two doors opening on the porch,) lies one of his suspenders where he was struck, and where the other one lies is where I picked him up;’ " and she further said, that she “ did not know in what direction the boy was going when he was struck, and did not know whether he was coming from the bars, or was on the outside of the track, or was coming down the track from Jackson’s,"— the house to which he had been sent on the errand by the witness. Lewis Unglebee, the husband of Mrs. Unglebee, was also examined by the plaintiff; but he saw nothing of the occurrence of the accident, not being at home at the time. He says that he saw a piece of the boy’s suspender above the crossing. This was the evidence, and the only evidence furnished, on the part of the plaintiff, to prove under what circumstances the boy was killed.

That he was not in fact first struck on the crossing, is reduced to a certainty, when we consider the speed of the train and the position of the boy on the engine when first seen by Mrs. Unglebee; though it is not perceived that this fact would make any material difference in the case. Nor ⁵⁹⁵ do we understand counsel for the plaintiff now to insist that such was in fact, the case. And if the defendant, at the close of the evidence for the plaintiff, had asked the Court to direct the jury that there was no evidence legally sufficient before them upon which they could find for the plaintiff, such direction could not have been refused; for at that stage of the trial there was not the semblance of a case made out. The defendant, however, did not pursue that course, but proceeded to examine witnesses to support the defence taken; and, among other witnesses, it examined the locomotive engineer and the fireman of the train that killed the boy.

It is upon the testimony of these two latter witnesses that the plaintiff now mainly relies. The plaintiff in his brief says that “the facts on which the case turned and depends are to be found in the proof of defendant’s witness, Eurley, the engineer in charge of the locomotive which killed the boy. ’ ’ Furley, the locomotive engineer, testified that when the train passed Onglebee’s house on the 23rd of August, 1888, it was 40 or 45 minutes late, and was running at a speed of 30 to 35 miles per hour. He could have stopped the train, he supposes, within 175 or 200 yards, by applying all the means available. The space between the two tracks is 7 feet, and between the ends of the cross-ties of the two tracks 3 feet.

His train was a mail train on the south track going to Baltimore; no train passed on the north track, at that point, between the hours of 1 and 2 o’clock that day; there would have been space enough between the tracks for anybody to have avoided danger from passing trains, walking or standing in the middle ditch, or the space between the ends of the ties; “witness was on the proper lookout as his train approached Unglebee’s house; that his place is on the right of the engine, and that of the fireman on the left. That he did not blow the whistle, on the day in ques ⁵⁹⁶ tion, for the Unglebee crossing, and never did so to his recollection; there is no whistling-post requiring it; has been running an engine on the road for 7 or 8 years, and never blew for that crossing, and never regarded the crossing as a public one. As the train was apjuoaching Unglebee’s on the 23rd of August, 1888, witness saw some person running between the north and south tracks, and appeared to be running as fast as he could, and when witness saw him the thought occurred to him that the jserson was trying to get to Unglebee’s house before the train could pass him; in witness’ opinion, when he first saw the person running cloAvn towards the house between the tracks, he- was 40 or 50 yards west of the crossing; the person appeared to be running as rapidly as he could — at full sj>eed: When witness first caught sight of the boy he supposes his train was 150 or 175 yards from him, as near as he