Baltimore & Ohio Railroad v. State ex rel. Wiley

Irving, J., delivered the opinion of the Court. This suit was brought in the name of the State, for the use of Lucy A. Wiley and others, to recover damages for the death of William H. Wiley, husband and father of the equitable plaintiffs, occasioned by collision of appellant’s trains, going in opposite directions. The negligence of the appellant’s officers is conceded, and appellant relies wholly on what it claims to have been contributory negligence on the part of the deceased, as its defence to the action. The deceased was chief postal clerk in the United States railway mail service.

He held what is known as a “photograph commission” from the government. His route was - from Baltimore to Grafton. He was entitled under his commission to ride as a passenger on the appellant’s trains, by virtue of his commission, while in the active discharge of duty, or in going from and returning home. At the time of the accident he was not in active duty, but was returning to his home until he should be called to duty again, in a few days.

He ³⁸ rode on the occasion of the accident in the smoking car from Baltimore to Washington; and the conductor saw and recognized his commission as entitling him to ride in the cars; and the conductor testifies he did not see him any more. He had left the smoking car, and gone into the postal car, where, after chatting awhile with those on duty in that car, he lay down upon the mail matter and went to sleep. The collision came. The postal car was crushed and the dead body of the deceased was found in the debris.

The witnesses say if he had remained in the smoking car he would probably not have been killed, as nobody in it was hurt. His presence was not required in the postal car, as he was off duty and returning home, subject to call into active service within six days, or sooner, if needed. The evidence shows that no one was allowed to ride in the postal car but such as had a photographic commission or a permit; and those who only had the permit had to pay fare. It was the custom of the conductor to allow persons holding photographic commissions to ride either in the postal car or in any part of the passenger cars.

Sometimes they would ride in one and sometimes in the other; and the conductor testifies he made no objection. The conductor was not admitted into the postal car, but it was the duty of the postal clerk in charge there to report to him the presence of any one chargeable with fare; and that when notified that clerks not on duty were in that car, he made no objection. It was also in proof that the deceased had, before that time, upon his photographic commission, been permitted on previous occasions to ride in the postal car when going on, or returning from, duty. Two exceptions were taken to the admission of evidence as to the custom of the conductor in giving permission of that sort; but they were waived at the hearing in this Court; so that the sole question intended to he raised by those exceptions is left as presented by appellant’s ³⁹ prayer, which goes to the effect of that evidence.

It was rejected by the Court below. That prayer is as follows, viz., "If the jury find that the deceased, at the time of his death, was a clerk in the railway mail service, and on the sixth of October last, entered the train of the defendant at Baltimore and rode to Washington in the smoking car attached to said train, and upon reaching Washington he left the smoking car and entered the postal car at Washington, attached to said train, as testified to by the witness Atkinson, and continued to remain in said postal car until the time of the accident, and was in said car when he met his death, and that from its position in the train the postal car was subject to greater risk of danger than the cars intended for the transportation of passengers; and further find that, when said deceased entered said postal car he was not on duty as postal mail clerk, and had no official duties to discharge in said car, but was returning to his home at Grafton, where he would have remained six days, unless sooner called into active service, and that if the