Chesapeake Beach Railway Co. v. Donahue

Schmucker, J., delivered the opinion of the Court. The appellee, Thomas Donahue, while walking along the railroad track of the appellant company in Prince George’s County was struck and injured by one of its trains. He sued the company in the Circuit Court of that county for damages’ resulting from his injury, and recovered the judgment from which the present appeal was taken. ¹²¹ The record contains eleven bills of exceptions of which eight relate to rulings on the admissibility of evidence, two to the Court’s action on the prayers and one to its refusal to grant a motion in the nature of a prayer asking the case be taken from the jury for want of legally sufficient evidence to justify a verdict for the plaintiff. The record in the case is unduly voluminous containing not only all of the testimony taken in the case, instead of so much only of it as is necessary to explain the bearing of the rulings upon the issues and questions involved, but also a full report of an almost continuous colloquy which ensued between the opposing counsel or between * them and the trial Judge, during the week or more consumed in the trial below.

It is stated in the appellant’s brief that exception was taken by the defendant to some of the remarks made by the trial Judge to the jury when the case was given to them, but; as no bill of exceptions founded thereon appears in the record, the question of the propriety of the remarks is not presented for our consideration. It appears from the evidence that the appellant company owns and operates a steam railroad, extending from the District of Columbia through Prince George’s and Calvert Counties to Chesapeake Beach. The operating yards of the road extend from the District line about three-quarters of a mile to-a point in Prince George’s County known as Seat Pleasant, where a round-house, water tank and other operating structures are located. The appellee, Donahue, is a truck farmer, about thirty years old, who has resided all of his life in the vicinity of Seat Pleasant, and was quite familiar with the locus in quo of the accident at the time of its occurrence.

On November 22nd, 1905, after spending the day in Washington, he started at about six o’clock in the evening to walk on the main track of the defendant’s railroad from the District line to his home. The night was a dark one with no moon shining. When he had reached a point nearly abreast of the round-house a regular daily passenger train coming from Washington about fifteen minutes behind its schedule time, at a speed of from 20 to 25 miles an hour, overtook him from ¹²² behind and struck him and cut off one of his feet. The accident occurred on a slight curve in the track, but beyond the. curve looking toward Washington the track ran almost in a straight line for 500 yards.

A number of empty passenger cars were standing on a side track near the round-house; but not in such a position as to intercept the view of the place of the accident to one coming down the track from Washington. There is evidence in the record tending to show that many persons had been in the habit of walking from the District line to their homes over this part of the railroad track ever since its construction in 1899, and that, although there was no depot building or platform there, Seat Pleasant appeared among the names of the stations upon the time tables of the appellant and its passenger trains occasionally stopped there to take on or let off passengers, and that the trains were accustomed to ring a-bell and blow a whistle as they approached the place. There is also evidence tending to show that pedestrians were in the habit of crossing the railroad tracks at a place quite near the locality of the accident and that there was a board there across the ditch running along the side of track. There is also evidence tending to show that Donahue had been, seen very many times on the company’s tracks by its superintendent and had been warned by him on different occasions to keep off of them.

The plaintiff put in evidence at the trial sec. 26 of Art. 23 of the Code of Public General Laws, which requires all railway trains to entirely stop for one-half a minute at each station advertised by the railroad company as one for receiving passengers upon such train, and imposes a penalty for a failure to comply with its provisions. Donahue as a witness on his own behalf gave the following account of the accident. “The train struck me just as I was coming to the board. There was a board on the side where the people walk. They get off and they start to walk up on the side of the track next to Mr. Lacey’s place.

Before I got to this board the engine struck me. I heard the rattle of it behind me, about four or five yards behind me, and I saw the ¹²³ light flash in front of me. Some one in the cab of the engine —I judge it was in the cab of the engine hollered to me when the engine was on top of me to get out of the way. At that time I jumped across the track as quick as I could and I hung my foot and the engine went over it.” In the following extract from his cross examination he gives further details of the occurrence. “Q. Mr. Donahue, you say that somebody called to you from this cab? “A. Yes, sir. “Q. When? “A. It was from the cab.

The sound came from the cab. “Q. Where were you then? “A. Where were I? “Q. Yes. “A. On the track going home, near the place where I was struck. “Q. When did you first hear the train? “A. When it was about four or five yards from me, I saw the light flash in front of me, and heard the rattle behind me. In the meantime some one hollered to me from the cab of the engine. “Q. Was the first intimation you had that this train was there gotten from this call to you? Was that the first you knew of it? “A. Yes, sir. When I heard the rattle of it behind me, and saw the light flash in front of me, at that time I jumped off the track as quick as I could, and some one in the cab of the engine hollered to me to get out of the way. “Q. Where were you when you first heard the rattle? “A. Right near the place where I was struck.

"Q. How near? “A. I could n’t give the whole space. When I heard the rattle of it I got off as quick as I could. It was right at the place, I might say. “Q. How long was it after you heard the rattle before you heard this call? “A. Right at the same time. At the time I threw myself off the track I heard some one up in the cab of the engine — I judge it was the cab of the engine; the sound came from there —to get out of the way. “Q. You say you can stay at your house and hear the whistle blow at Marlboro? ¹²⁴ “A. I judge it was at Marlboro, from the time it runs to my house. “Q. Can you stay at your house and hear the engine puff at the District line? “A. Yes, sir; I judge about that.

Sometimes it starts out with a puff.” Donahue also testified that when the accident happened he was not intoxicated, but had full possession of his senses and would have gotten off the track if he had heard the. train in time. He further stated in his testimony that no whistle was blown nor bell rung from the engine before it struck him. Several other witnesses who were near the scene of the accident testified that they heard neither bell nor. whistle from the approaching train, although they felt sure they would have heard them if they had been sounded. On the contrary the engineer and fireman of the train both testified that, the bell was rung and the whistle blown in the usual manner on approaching Seat Pleasant on that evening.

Love Williams and Garner Randall, two acquaintances of Donahue, who also resided near Seat Pleasant, testified for the plaintiff that they were walking home together from the District line on the railroad track about 7 5 yards behind him on the evening of the accident. They both heard the train running and puffing behind them and one of them heard the engine bell ringing, and they stepped from the track and allowed it to pass them. They heard Donahue’s cries when he was injured and hastened to his relief. Randall said that Donahue when they came up to him did not talk like a drunken man.

Williams said that Donahue had been drinking but he could not “tell just whether he was sober or not,” he had sense enough to tell Williams what to do. Witness further said that when he came up to Donahue there was a bottle of whiskey “setting there” and he asked Donahue what he was doing with a bottle there and Donahue replied “Love take it away and drink it or break it to pieces or do what you chose with it — I don’t want it any more as long as I live.” Donahue himself testified that he had not taken more than two drinks, one of whiskey and one of beer, during the day and further said that the bot- ¹²⁵ tie of whiskey which he gave to Love Williams after the accident had not been opened, but each one of the three other witnesses testified to having seen Donahue drunk in Washington between four and five o’clock on the afternoon of the day on which he was injured. It is apparent from the testimony to which we have adverted, coming from the plaintiff’s own witnesses, that on the night on which he was injured he deliberately started to walk for the distance of nearly a mile- on the main track of the railroad at a time when he must from his familiarity with the situation have known that a train was about due without first ascertaining whether the train had in fact passed by. He continued to walk upon the track until he had almost completed his intended journey without, so far as the record