Baltimore & Ohio Railroad v. State Ex Rel. Welch

Schmucker, J., delivered the opinion of the Court. The appeal in this case is from a judgment of the Superior Court of Baltimore City against the appellant company for damages for fatally injuring the son of the equitable appellee by one of its locomotives. It appears from the record that on the afternoon of Sunday, August 15th, 1909, James H. Welch, a minor son of the equitable appellee, about 14 years old, was run over and fatally injured by the tender of a locomotive of the appellant while it was backing along a switch on what is known as Wells street at or near the foot of Byrd street in Baltimore City. The entire bed of what is called Wells street was then owned by the appellant and occupied by its east and west bound main tracks and several switches.

The boy was there- | fore at the time of his injury a trespasser upon the appellant’s 1 track unless he was present there by virtue of some implied license or permission from it. The evidence both as to the details of the accident and the current uses of the locality of its occurrence are quite conflicting. Wells street runs east and west. The territory lying north of it in the vicinity of the accident comprises part of the improved portion of the city, and contains many houses of the plainer sort such as are usually occupied by laboring people and factory operatives.

The land lying south of the street at that point contains but few residences and is practically unimproved except by the appellant’s roundhouse and coal chute and some factory buildings. Byrd street runs northerly from Wells street and at right angles to it, but ⁵⁴¹ does not intersect or cross it. South of Wells street, immediately opposite the foot of Byrd street, is situated the factory building of the National Enameling and Stamping Company, which ordinarily employs from 100 to 800 persons. The roundhouse, coal chute and yards of the railroad company lie a short distance east from the factory of the Enameling and Stamping Company.

The accident by which the appellee’s son was injured occurred at a point almost opposite the foot of Byrd street on the track of a switch running along the bed of Wells street from the appellant’s roundhouse to its main tracks and lying south of both of the main tracks. The witnesses for the defendant place this point further away from the line of Byrd street than those for the plaintiff. On the south of Wells street about two squares east from the foot of Byrd street there is a roundhouse of the appellant, and also a coal chute, from which the engine was backing along the switch toward the main track when it ran over the boy. There is evidence in the record tending to prove that many of the operatives employed in the factory of the Enameling and Stamping Company and also other persons had for years past been in the habit when going to and from their work of crossing the defendant’s tracks on Wells street in the vicinity of the factory without hindrance or opposition, and that there were no signs or warning near the place forbidding such crossing.

This evidence does not tend to show the existence of fixed or definite places of crossing, but rather tends to establish a habit of crossing the tracks at will whenever persons wished to go over them. There is also evidence in the record tending to show that the boy was on the track where he was injured from the time that the engine started from the coal, chute, about a block and a half away, and that he was in full view from the engine while it was backing up to him. One witness testified that the boy was fastened to the track by having his ⁵⁴² foot caught between the switch point and the rail when the switch was thrown, and was screaming and ineffectually struggling to free himself when he was run down by the tender of the backing engine. Other witnesses described the boy’s action as the tender came upon him by saying that he “kind of-raised offf his feet” and “gave a sort of jump to get out the way of the engine,” moving about six feet in the effort, or that he was walking on the track in front of the tender and started to run and fell.

There is, on the contrary, evidence tending to show that it was impossible for the boy’s foot to have been caught in the switch in the manner testified to by the witness who said that he saw him with his foot so caught. There were three persons on the engine—the engineer and fireman, who were in charge of it, and a brakeman who was riding on it to his place of work at Camden Station. The brakeman testified that he was looking back over the tender all of the way up to the place of the accident, and did not see the boy until after he was injured. The engineer testified that he was on the left-hand side of the engine looking backwards in the way he was going until he got to switch No. 29, the place of the accident, and did not see the boy.

The fireman testified that he was putting coal in the firebox and not looking at the track. There was also evidence tending to show that the tender was one of the modem type, at the rear of which there was no provision for a person to stand as a lookout and that it would not be safe for anyone to stand there. The case was tried before the Court and a jury, and the trial resulted in a verdict and judgment in favor of the plaintiff, and the defendant appealed. Twelve bills of exception appear in the record, of which eleven relate to rulings on the admissibility of evidence and one to the Court’s action on the prayers.

The first three exceptions were taken to the admission by the Court, over the defendant’s objection, of testimony tend ⁵⁴³ ing to show that persons had long been in the habit of walking along Wells street and crossing the defendant’s tracks in the vicinity of the place of the accident. The Court below erred in admitting this testimony. The north and south streets in that section do not cross the property of the defendant which .we have designated as Wells street, nor is there any evidence of the existence of any legalized public crossing of the railroad tracks at or near the place where the boy was run over. In B. and O. R. R. v. Allison, 62 Md. 487 , we said: “A right of way of a railroad company is the exclusive property of such company, upon which no unauthorized person has the right to be, and anyone who travels upon sirch right of way as a footway and not for any business with the railroad is a wrongdoer and a trespasser; and the mere acquiescence of the railroad ..company in. such .user - does not -give the right to use it or create, any obligation for especial protection.

R. R. Co. v. Godfrey, 71 Ill. 500 . Whenever persons undertake to use the railroad in such case as a footway they are supposed to do so with a full understanding of its dangers and as assuming the risk of all its perils.” We cited many authorities for what was thus said and we have given expression to similar views in more recent cases. Price v. P., W. and B. R. R. Co., 84 Md. 512 ; Reidel v. P., W. and B. R. R. Co., 87 Md. 156 ; Westn. Md. R. R. Co. v. State, use of Kehoe, 83 Md. 434 ; Ches.

B. R. R. Co. v. Donahue, 107 Md. 128 . Those cases differ in principle from McMahon’s case, 39 Md. 438 , and Sheridan’s case, 101 Md. 50 , where the accident occurred to a person using a public street which was blocked by the cars which injured him. The fourth exception was taken to the admission in evidence over the defendant’s objection of section 14 of Art. 30 of the Baltimore City Code of 1906, requiring a locomotive when used within the city limits to have a man riding on its front when going forward and on' its tender when g'oing backward, not more than 12 inches from the bed of the road, &c., &e. That section has been held by us to be now practically ⁵⁴⁴ obsolete and inoperative in B. and O. R. R. v. State, ues of Mali, 66 Md. 59 , and State, use of Harvey, v. B. and O. R. R. Co., 69 Md. 346 .

We therefore think the ordinance in question should not have been admitted in evidence. The fifth exception was to the refusal of the Court to grant the defendant’s prayers to take the case from the jury, when offered at the close of the plaintiff’s case. The defendant, under the settled law of this State, lost the benefit of that exception by introducing its evidence, but as the -same prayers were again offered at the close of the whole case their propriety will be considered by us later on. The sixth and seventh exceptions