Baltimore & Ohio Railroad v. Walsh

Offutt, J., delivered the opinion of the Court. This suit grew out of a collision between one of the appellant’s locomotives and a small switching engine owned by the Union Shipbuilding Company and operated by its employee, George Walsh, the appellee-, on the appellant’s tracks at Fairfield, Curtis Bay, on February 15th, 1921. Walsh, who- was- painfully and seriously injured iu the collision, applied for and was awarded compensation under the Workmen’s Compensation Act, which was paid by his employer. ²³² Walsh contended that the collision was due to the appellant’s negligence, and on December 23rd, 1921, in the Superior Court of Baltimore Gity, he brought this action, which in regular course came on for trial and, the* verdict and judgv ment in that trial "being ag;ainst the appellant, this appeal was taken. There are three exceptions in the record.

Two nf these relate to the .admissibility of evidence and are of minor consequence. The other relates to the court’s rulings on the prayers and presents the substantial question in the case, which is whether, under the pleading's, the appellee was entitled to recover at all upon the evidence in this cáse, and the consideration of that question involves a review of the pleadings., the prayers, and the evidence. The declaration, which was filed by Walsh for his own benefit and that of his employer1, contains two. counts. In the first count, the negligent act complained of is said to he this, that while, the plaintiff, in operating the Union Shipbuilding Company’s locomotive, “was proceeding” to pass along the tracks of the defendant where they connect with the tracks of the Union Shipbuilding Company and while “the fireman or brakeman of the plaintiff’s locomotive was in the act of making the necessary switch connections for the locomotive operated by the plaintiff as aforesaid, a locomotive engine owned by the defendant was so. negligently, carelessly and unskillfully operated over and along the tracks of the said defendant, by its agent and servants in the course of their employment, as to run into and agiainst the locomotive operated by the plaintiff as aforesaid, with great force and causing’ the plaintiff to he thrown from his seat in said locomotive to the ground.” In the second count, the plaintiff, after charging the negligence referred to in the first count added this: “And that at the time of the accident herein referred to the defendant, its agents or servants, saw, or by the exercise of ordinary care could have seen the locomotive operated by the plaintiff as aforesaid in the position it was at that time, ²³³ and could have avoided this accident by the exercise of ordinary care and skill in the operation of said locomotive ; hut notwithstanding that, the defendant’s locomotive, operated hy its agents and servants as aforesaid, collided with the locomotive in which the plaintiff was riding, causing the plaintiff to he thrown from his seat in said locomotive to the ground.” To this declaration the general issue plea, was tiled and issue joined thereon.

At the conclusion of the whole case the plaintiff offered one prayer, the usual damage prayer, which was granted, and the defendant nine prayers, of which all were granted hut the first, second and third, which were: refused. The three ref jeetecl prayers were intended to raise these questions, one, was the evidence in the ease legally sufficient to allow the plaintiff to recover; two, was it legally sufficient to allow him to recover under the pleadings, and three, was, he barred by any negligence of his own contributing to the accident. As these questions involve: a, consideration of the force and the effect of all of the evidence in the case, it will be necessary to review that evidence in some detail. The appellant maintained and operated two tracks at the place where the accident occurred.

The Union Shipbuilding Company operated and maintained several sidings adjacent to the appellant’s tracks and physically connected with them hy switches. In going from, one of these sidings to another, the locomotives of the shipbuilding company necessarily used the main tracks of the appellant because, while they were all connected with those tracks, they had no other connections with each other. Walsh was a, locomotive; engineer and his duty was to shift freight from, one siding to another hy means of the shipbuilding company’s locomotive which he operated, and in the course of this work he: would go on the main tracks of the B. & O. Railroad and switch off oar to one or another1 of these sidings as often as half a dozen or more times a day, and the railroad company knew that he used the B. & O. Railroad tracks in that way. ²³⁴ On. the occasion of the accident die was operating his engine on one of the switches known as. the “warehouse switch.” The day was clear and the engine was running backwards light, and there were on it at the time William Hutchins and Victor Tout-ant. This siding, which runs from southwest to northeast, formed a curving tangent to- the railroad company’s tracks which run nearly east and west, and the space between the two was entirely clear and unobstructed.

Toutankwas on the right side of the engine when facing in the direction in which it was running, and Bill Hutchins, the fireman, was on the left side of the steps on the back of the engine. Walsh was taking the engine over the siding to- the B. & O. main tracks, intending to take it along those tracks to another siding of the shipbuilding, company, and the collision occurred, ap^ parently, just as- his; engine reached the B. & O. Railroad tracks. The engine had not gone through the switch, but its overhang projected partly over the main track and the appellant’s engine, passing along the track at that time, “side swiped it.” George Walsh, the plaintiff, in describing the accident, said: “A. When I got to- the switch or near about the switch Bill Hutchins jumped off to throw the switch and I almost come to a standstill, and I heard a little noise, and I looked around and the- thing was on me and smashed into- me, the B. & O. engine. * * * As soon as I seen it had m,y engine in back motion, I threw the reverse bar in the forward motion and tried to1 get out of the w:ay when I seen it-coming on me, but before I could get -out of the way it struck me, knocking me out of the cab to- the ground. That the engine on which he was riding had the bumper torn under it and that after the .accident it went down the track into the ship yard; that he did not open the- throttle, but he did put the bar in forward motion; that he says the blow from the B. & O. engine opened the- throttle, because! the throttle is always shut, and when the blow came it must have opened it. * * * When Bill Hutchins jumped off to- throw' the switch I heard the ²³⁵ noise and I looked around and they were there right on me; that is when I first noticed him coming from the cross-over switch from the track they were on to the track I was on and side-swiped me.” He further testified that the engineer on the B. & O. engine did not blow any whistle or give any other signal.

On ci-oss-examination, after testifying that when the collision occurred his engine was partly on “the main trad?; of the B. & O., and that Hutchins had got down to throw the switch hut had no: opportunity to do it before the crash came, and that the switch was set. against him, that it was necessary for Hutchins to change the switch before his engine could get on the main tracks, that it would not derail the engine to go through a closed switch, but would break the switch, and that he did not certainly know whether Hutchins had thrown the switch when the crash came, he gave this testimony: “Q. You see this point, there is a switch and there is another; it is full of switches in there; here is the cross-over; here is the main track? A. Your cross-over switch was wrong; it was open for the B. & O', man to come across. Q. It was wrong for you ? It was set for the B. & O, and not for you ?

A. Yes., sir.” William J. Hutchins, the fireman on the engine which Walsh was driving, testified that he first saw the B. & O. engine as he was getting down to throw the switch, and that it was then about six feet away, and that when he saw it he ran to get out of the way, that “he was standing on the left side of the engine backing out and could see down the Prudential Company’s siding of the B. & O. Bailroad Company tracks about 300 yards; that he was facing in the direction in which he was going; that the Prudential Oil siding would be to his left; that in order to get on the main track of the B. & O. it was necessary to turn a switch; that he did not have time to turn the switch before tbe accident happened; that the Union Shipbuilding Company’s locomotive was not ten feet away from the switch when the accident happened.” On •cross-examination he testified that coming” down the warehouse ²³⁶ siding, he was on the step' of the left hand side of the engine backing out, on the southern side of the track, that he stepped off just as the engine on which he was riding came to a stop to throw the switch which was set against that engine. On re-direct examination he testified that he did not look over to the Prudential siding (from which the B. & O. engine was coming), although his view of it was unobstructed, but looked straight ahead in the direction in which the engine on which he was riding was going. Victor Toutant testified, on the occasion of the accident he was on the engine with Walsh and Hutchins, standing on the right or north side, that he saw no engine on the B. & O. tracks although he looked to see if there was any. He was then asked “what happened when you were about to go- on tbe main track of tbe B. & O. ?” and he answered : “We were just about to enter on tbe track, the. switch was against us, and we had to stop and throw the switch before we got across; William Hutchins got off; stepped off the step on the left hand side of the engine backing out to throw tbe switch; just stepped right back of tbe Union Shipyard engine again to get out of the way of the B. & O., and as I noticed him step back I just turned around and noticed Mr. Walsh reverse his engine, and the crash came.” He further testified that the B. & O. engine was eight or nine feet away when he first saw it, and that he heard no bell or whistle'.

William H. Blakeman, the manager of the Union Shipbuilding Company, testified that the company’s locomotive was used to. push empty freight cars on the B. & O. trades and to- go from one siding to another, and that it would go on the B. & O. tracks, from one to a dozen times a day and that so far as he knew there had been no remonstrance on the part of the railroad company to. that use of the tracks. The testimony offered for the defendant was to the effect that the switches connecting the sidings with the main track were “lined up” for the B. & O. engine, “set green,” which gave that engine the right to run through them. That an engine could not get entirely on the main track of the Balti ²³⁷ moro and Ohio Railroad -without going through two switches, and that at the time of the accident these switches showed a clear way for the appellant’s engine and Were: set against the engine driven by the appellee; that in approaching the switch a hell was rung. That in backing: no one is kept on the back end of tbe engine as a lookout because it would be too hazardous; that the engineer kept his eyes on the switches to see they showed up correctly, and that no watch was kept on the sidings except at the switch points; that even if the crew of the B. & O', engine had seen the engine on the siding:, “that would not indicate it was coming out on the, B. & O. main track.

This is in substance .all the evidence material to the questions before us and as to most of its essential facts it is undisputed. The first question presented for our consideration in connection with these facts is naturally whether they are legally sufficient to show primary negligence on the part of the appellant, and that question the appellant has attempted to raise in its first and second prayers. The first prayer presents the proposition that the evidence is; not legally sufficient to warrant a recovery, and in dealing with that prayer we pass only upon the legal effect of the evidence without reference to the pleadings. Chenoweth v. Hoey, 135 Md. 97 ; Carr v. United Railways Co., 135 Md. 307 .

The second prayer asserts the proposition that under the pleadings there is no evidence legally sufficient to entitle the plaintiff to recover. It is urged that under the provisions of article 5, section 9 A, Code Pub. Gen. Laws of Maryland, the prayer is too general in its form to present any question which this Court, can consider.

The underlying theory of the prayer is that, even, if the evidence does show that the defendant was negligent, nevertheless, as the negligence thus shown is not the negligence complained of in the declaration, there can be no recovery. In other Words it is necessarily based upon a variance between the pleadings and the proof. But as, it does ²³⁸ not specifically designate the points at -which the variance exists, this Court is precluded by the statute referred to from considering the objection. Western Union Tel.

Co. v. Bloede, 127 Md. 344 ; Fulton Bldg. Co. v. Stichel, 135 Md. 542 ; Rasst v. Morris, 135 Md. 243 . We will therefore return to the point made by the first prayer, to wit, that the evidence in the case 'is not legally sufficient to show any primary negligence on the part of the appellant. Whether negligence on the part of the appellant may be inferred from the facts of this case depiends largely upon the Weight .and effect to be given to the evidence relating to the condition of the switches connecting the warehouse1 siding with the main tracks of appellant’s railroad at the time of the accident.

It is undisputed that these switches were “set against” the .appellee and for the appellant’s locomotives. There is no¡ evidence of any defect in the appellant’s track or locomotives, but it is contended that the .appellant owed to persons in the lawful use of the “warehouse siding” the duty, of anticipating that, as- an incident of such use, locomotives migjht at any time be driven from that siding on to the main tracks of the appellant, and that it was in consequence bound to use ordinary care to avoid injuring persons operating such locomotives, and that it