Maryland, Delaware & Virginia Railway Co. v. Brown

³¹² Pearce, J., delivered the opinion of the Court. The appellee, who was employed by the appellant as an engineer to operate certain of its trains over its railroad between Love Point, in Queen Anne’s County, Maryland, and Eehoboth, Delaware, brought this action to recover damages . for injuries received by him in a héad-on collision between the engine and passenger train which he was running at the time, and another engine with a tender and coal car attached which was unmanned and running wild on the same track, the railroad being a single track road. The collision occurred about eight o’clock in the evening of August 6th, 1905, at a point a few miles from the western terminus of the road at Love Point, and almost immediately after crossing Kent Island Harrows, the stream which separates Kent Island from the main land of Queen Anne’s County. In crossing this stream the plaintiff had reduced the speed of his engine and train to about ten miles an hour in accordance with standing instructions, and was just getting under headway again when he and his fireman caught sight of the runaway engine about two engine lengths away when it was impossible to do anything to avert the collision or break its force, and the result was that the plaintiff was thrown from his engine unconscious, and was severely injured; that he was not able to do anything for over a year and incurred a bill for medical services of $100; that he was scalded, cut on the head, and had his teeth knocked out and still suffers much and constant pain; that he attempted, after the lapse of a year, to run a train on defendant’s road, and did so for about a month, when he was unable to stand it, and was obliged to give it up, and took up firing for the United Eailways and Electric Company at the Pratt Street Power House, which is much lighter work than running a train.

His wages as engineer were $80 a month, and his pay as fireman for the United Kailwáys was two dollars and a quarter per day and he began that work in June, 1907. Before that he kept a livery stable, but made not over a dollar a day at that, and he only kept this stable about six months in all. The engine he was running at the ³¹³ time of the collision was known as Ho. 3, and it was properly manned and lighted. The runaway engine was known as Ho. 1, and was unlighted and unmanned.

The jury found a verdict for the plaintiff for $3,000, and from the judgment-on that verdict the defendant has appealed. There are twelve bills of exception in the record, of which, eleven are to rulings on evidence, and one to the ruling on the prayers. There are three counts in the declaration. The first count charges as the cause of the plaintiff’s injuries that the defendant did not exercise due and. ordinary care in the selection, employment, and retention of reasonably competent and proper co-employees with whom the plaintiff was required to work.

The second co-unt charges the defendant with negligence in failing to provide reasonably safe and proper tools and equipment for the performance of the work required of its servants, and exposed him to unnecessary risk and danger while so employed, in that while running his own train on defendant’s road on Aug. 6th, 1905, his said train, because of the unfit and unsafe condition of another train on said road, collided with said last mentioned train, and he was injured in consequence thereof. The third count charges that the defendant neglected to exercise due and ordinary care in the inspection of the equipment of the railroad, in and about which the plaintiff was required to work, in consequence of which the plaintiff’s train collided with an unmanned and wild engine on the same track, causing the injuries complained of. The first exception arose in this way: The plaintiff, after testifying lo the facts of the collision, said that he had run Engine Ho. 1 before the collision, and being asked what was her condition at that time, replied that she was not in very good condition. The defendant moved to strike out that question and answer, and the Court said: “You will have to bring it nearer than that—say within a week or so.” Plaintiff’s counsel replied: “I will cover that,” and the Court said: “It will be admitted subject to exception.” The plain ³¹⁴ tiff then testified as follows-: “I think it was in July I ran her, the latter part of July to the best of my recollection.

It was in bad shape; it was an old engine, and when you ran her on the road, and you happened to take your hand off the throttle, her throttle bar would work open. The throttle bar is what gives her life; it is what malíes her move; when it opens it puts her in motion.” The court here asked: “Why did it open?” and he replied: “The throttle was old and worn out!, and the spring was weak to the best of my judgment.” He was then asked to describe the type of engine No. 1, and answered, “I cannot exactly tell what type she was; the only thing I can tell you is that she was old and worn out apparently when they got her.” Defendant moved to strike out the last answer as not responsive to the question and the Court refused the motion. We do not think it can be said this answer was not fairly responsive to the question. This man was not a mechanical engineer trained or experienced in the construction of locomotives.

He was a farmer first then foreman of a force for the defendant, and in 1905 became one of its locomotive engineers. His answer imported that it was an old type, being as he added, worn out when the defendant got it. Moreover this answer could not work any injury to the defendant, because the next witness John F. Hess a fireman of defendant, and assistant machinist, testified without objection, that it was “an old engine, about the type used and operated on the P., B. & W. R. R. many years ago.” There was therefore certainly no reversible error in this exception. The second, third and fourth exceptions all relate to proof of the plaintiff’s earning capacity as affected by his injuries and may be considered together.

Having previously described his injuries, and stated that in consequence he was unable to pursue his former occupation, or to perform as hard work as before, he was asked in the second exception, what income, if any, he had derived from any source since the accident. He replied that he was not able to do any work until June, 1907, when he went to ³¹⁵ firing for the Electric Railways at a Power House, vliicli is light work. In the second exception he was asked what he received for this work, and he replied two dollars and a quarter a day. In the third exception he tvas asked what income, if any, he had before June, 1907, and he replied only from a livery stable he kept for about six months which gave him a bare living, about a dollar a day.

It was certainly proper for the jury to know how his injuries affected his earning capacity, and there could he no better evidence of this than a comparison of what he had testified were his earnings at the time of his injury, with those he was capable of earning and did receive afterwards. It was the privilege of defendant upon cross-examination or otherwise to show, if it could, that he did, or could, with proper effort, have earned moro than he testified, and we can perceive no error in these rulings. The fifth, sixth and seventh exceptions relate to the exclusion of evidence offered hv defendant as to its custom in the conduct of its business. The defendant’s Assistant Master Mechanic, Louis Exeter, being called for the defendant, testified that on the morning of the accident he repaired the injector of Engine Ho. 1, which the hostler reported out of order and that when this was done she was in first-class order; that he then backed her to the siding from the main track io the roundhouse, chocked her, put a bar in the centre and left her; that he looked at her again about 5.30 that evening and her throttle bar and reverse bar were all right and she was in first class condition for-service; that the duties of a hostler are to clean and fire the engines, and keep them steamed and watered, and to be around the roundhouse and watch the locomotives; that some hostlers look after five, some after ten and some as many as thirty engines, but on that day, at that time, there was only one to look after.

He was then asked “Is he expected to stay on the engine?” This was "objected to, hut was answered “Ho,” after objection was made, and on motion this was stricken out. This was ³¹⁶ the fifth exception. He was then asked “What is the custom down there as to locomotives when they are brought in; what is done with them; what is done as to their steam and how is their steam kept?” This was the sixth exception. He was further asked: “What was the custom as to railroad com- panies leaving engines in the yard when they are not in actual service, with steam on them,” and this is the seventh exception.

It would hardly be necessary to cite authority to sustain the rulings on the fifth and sixth exceptions, since the usage or custom there inquired into was merely the custom of the defendant. Its custom might be either careful or negligent, and, in itself, could not aid the jury in determining whether the defendant was or was not negligent in its management of live engines left standing on a side track. ' That was to be’ properly determined from the evidence as to how that engine was cared for, under such instructions as should be sought and granted by the Court. The servant does not assume the risk attending the work as conducted in accordance with his employer’s individual methods. Labatt on Master & Servant, sec. 53, page 137.

He assumes only those which cannot be obviated by the exercise of ordinary care, idem, sec. 2, page 4. The question which gave rise to the seventh exception is not in our opinion properly framed. It is not proposed to show a universal, or even a general custom, prevailing in railroad management. It is so vague as to leave it in doubt whether it was intended to apply to all, or only to some of the vast number of railroads in this country.

It does not limit the question to well conducted railroads, and would permit the jury to adopt a standard of care based upon the custom of other roads, whether careful or negligent. The requirement that the inquiry as to usage or custom in such cases should refer to well conducted railroads, was emphasized in Benson v. N. Y. N. H. & H. R. R. by the Supreme Court of Rhode Island, in 49 At. Rep. 691 , and also in L. & N. R. R. v. Jones, by the Supreme Court of Ala., 30th South Rep. 589. In the latter case the Court said: “A charge propos ³¹⁷ ing to make a standard test of duty by the usage of eight railroad companies was invasive of the province of the jury.” We find no error in these ridings.

The eighth and ninth exceptions present the same question substantially and differ but little in principle from the exceptions just considered. James E. Willey, one of the defendant’s locomotive engineers, had testified that he ran No. 1 from Rehoboth to Love Point the day before the, accident; that the throttle did not leak, and he had no trouble with it; and he then stated what he did with this engine when he came in from that run. He was then asked: “Is it the practice doivn there for engineers when they bring their locomotives in to do just what you have done in this case ?” And again he was asked: “State whether or not an engineer is expected to report the condition of his engine, if it is in bad condition when he brings it in ?” Both questions were objected to, and 1he witness was not allowed to answer. What has been said of the three preceding exceptions is applicable to these, and in addition thereto both are leading questions.

The last really asks for a rule of the company, and the best evidence would be the rule itself, to be followed by proof of compliance on that occasion with the rule. Notwithstanding this ruling however, the record shows that after it was made, this witness testified “that witness received, and his instructions were, to report the condition of the engine, and that he reported it to the repair shop,” and the record also shows that before the eighth exception he testified without objection that, “he reported her condition was all right for service,” so that the defendant received the full benefit of the question in the ninth exception. Marion F. Young testified for defendant that he was its assistant Master Mechanic, and saw Engine No. 1 when she was delivered to defendant in May or June, 1905, and that she was in good condition at the time of the accident. He then testified at considerable length as to the construction of Engine No. 1, using a sectional blue print of a similar locomotive for the purpose of illustration, and testifying that ³¹⁸ ■when the- reverse bar is in the centre (as Exeter had testified he left it when the engine was placed on the side track), the locomotive could not move because the ports through which the steam is let into the steam chest are closed, and that the opening of the throttle would not open the ports.

He was competent to so testify and the testimony was proper for the jury. He was then asked: “Do you know how this accident happened?” and the plaintiff objecting, he was not permitted to answer, and this constitutes the tenth exception. We have carefully examined the testimony of this witness to discover the foundation for this question. There is not a particle of evidence when this witness saw this engine, or examined it, between its arrival and this accident.

The only evidence is that he examined the steam pipes of this engine after the- accident, leading to the throttle, and they were in good condition. He said: “She was not just old junk, and that the company was keeping some of the cross heads and valves which they may use some day.” There was no evidence that he was near the engine, or that it was within his sight when it escaped. But the defendant contends that he should have been allowed to answer this question, “both because he may have been present at the time No. 1 left, or because he found out the reason she left by an examination of her after the accident.” If he was present when she escaped, that fact should have been affirmatively shown, as the foundation for the question, though we are not to be understood as saying that this alone would be a sufficient foundation without a full statement of all that he saw at the time of the escape, and we cannot agree that this post-mortem examination of an engine wrecked by such a collision, could enable this witness to testify that he knew the cause of the accident. It is perhaps possible that as an expert machinist, he might form some opinion of the cause of the accident, but we are not prepared to say that the expression of such an opinion would afford the jury any rational basis for a conclusion by them, and in our opinion the ruling was correct.

At the close of all the testimony the defendant moved to ³¹⁹ strike out the testimony of the plaintiff, as to the condition of the engine in July, 1905, and the defect in the throttle bar, all of which was admitted subject to exception; also to strike out the testimony of John A. Roe, the fireman on plaintiff’s train at the time of the accident, to the same effect as Brown’s, relating to the condition of the throttle. The record shows that Roe’s testimony was not admitted subject to exception and therefore cannot he stricken out. if or do we think the testimony of either should he. We think this testimony brings the inquiry sufficiently close to the accident in point of time, if there is no other objection to its admission. The defendant