Cumberland & Pennsylvania Railroad v. State

Bartol, C. J., delivered the opinion of the Court. Thomas Hogan the husband and father of the equitable plaintiffs was employed as an engineer on the appellant's railroad, and was killed on the 5th of May 1874 by the explosion of locomotive engine Ho. 22 of which he then had charge. This suit was brought to recover damages sustained by his widow and minor child by reason of his death. The appeal is by the defendant, and brings up for review the rulings of the Circuit Court upon the prayers, and the instruction given by the Court to the jury.

The accident which caused the death of the engineer is the same as that by which Moran the fireman was killed, and which gave rise to the suit of the Slate, use of Moran, decided at the last term, ( 44 Md., 283 .) The decision of Moran's case has settled several of the questions which were raised by the prayers of the appellant, and has very much narrowed the subjects open for discussion on the present appeal. In this case there was no evidence of negligencé on the part of the Company in the selection of faithful and competent employes; the ground of the action and the liability of the defendant rested upon the alleged facts that the engine was unsound and unsafe when it was purchased and put upon the road, and so continued till the time of the accident, and that the agent of the defendant, by whom it was purchased, did not exercise ordinary care in ²⁴⁰ purchasing and procuring a sound and safe engine. These facts were submitted to the jury, hy the instruction given by the Court, and by the defendant’s fourth, seventh and eighth prayers which were granted. It was decided in Moran’s case that “it was the duty of the defendant to supply, as far as it could be done by the exercise of due and proper care, safe and sound machinery ; that the persons authorized to make the selection of and purchase