Baltimore & Ohio Railroad v. State ex rel. Welch

Constable, J., delivered the opinion of the Court. The appeal in this case is from a judgment recovered by the equitable plaintiff against the appellant, for the fatal injury to her son, caused by the alleged negligent management of a locomotive and tender of the defendant company. This-is the third appeal in this case to this Court, the first and second being reported in 114 Md. 536 , and 117 Md. 280 , respectively. The opinions in those appeals fully considered the testimony, and stated the law applicable to the case; thus rendering it unnecessary for us to review the testimony, excepting where it differs from the former trials.

The son of the equitable plaintiff, a boy of fourteen years of age, was, during daylight, run over and fatally injured, by the tender of a locomotive of the appellant, while he was fastened, by having his foot caught between the point of a switch and the rail of the tracks of the appellant. The engine was backing at-a rate of two miles an hour along a side track, which was considerably curved, with no natural obstruction to the ³²¹ view between the point where the engine was at the time the boy became fastened, and the point where he was injured, a distance of a block and a half. The boy was yelling and screaming and throwing himself up and around trying to loosen his foot. The place where he was caught was on the inside of the curve, and the place on the engine where the engineer was sitting, leaning out of the cab and looking in the direction in which he was backing, was the same side, or inside, of the curve.

At the first trial the engineer and brakeman who were on the engine, testified that they were both looking in the direction in which they were backing, and did not see the boy until after he was struck. At the second trial the engineer, called by the plaintiff testified, that although he was looking in the direction he was backing, he did not and could not see the boy, because the tender, being between him and the direction in which he was running, cut off the view of all in front of it. At the last trial both the engineer and brakeman testified, that they did not and could not see the boy for the reason just stated, but that they did not hear his screams, and could not have heard them on account of a noise in the engine produced by the blower. There was other testimony to the effect, that when the blower is at work it makes such a noise it is not possible to. hear sounds from without the engine.

Therefore the appellant contends, from this testimony, it was a physical impossibility for them to have either seen or heard the boy, and not owing him any duty until they became aware of his danger, there was an insufficiency of proof to submit the case to the jury. The appellant has asked this Court, although there are other exceptions contained in .the record, to pass only on the question involving the liability, and for that reason we will only pass on that question. - In both former appeals this Court held, that the boy was. a trespasser, and that the employees owed him no duty until they became aware of his presence on the tracks in a position of peril, but further held that there was sufficient evidence ³²² from which the jury could find that they were aware of his presence in time to have averted the accident. The Oourt said in 114 Md., at page 545 , “Conceding the defendant’s contention that the plaintiff must he regarded as having been on its track as a trespasser when he was injured and that therefore under our rule in Kehoes’ Case, 83 Md. 434 (and subsequent cases), its employees in charge of the backing engine owed him no duty until they became aware of his presence on the track in a position of peril, we still think there was evidence in the case requiring the Oourt to send it to the jury. “The plaintiff’s witness Trump, whose testimony for the purpose of the present inquiry must be taken to be true, testified that the hoy’s foot was caught between the switch points and the rail when the engine was a block and a half away from him, and that he screamed and yelled and tried to pull his foot loose but was held fast until the tender ran over him. As the engine and tender approached him they moved at a rate of two miles an hour.

Both the engineer and the brakeman, who were then on the engine, testified that they were looking back in the direction in which they were' moving all the time and did not see the boy towards whom they were going until after the tender had passed over him. If those two witnesses told the truth, Trump could not have done so; but their evidence was not conclusive of the fact and the jury may not have believed