Northern Central Ry. Co. v. State Ex Rel. Gilmore

Schmucker, J., delivered the opinion of the Court. This is an appeal from a judgment of the Court of Common Pleas of Baltimore City in favor of the equitable appellee for damages for the death of his son as the result of an accident at a railway crossing. There is but one bill of exceptions in the record and that is from the Court’s rulings on the prayers. The evidence as to the locus 111 quo of the accident and of the situation of the parties involved in it, down to a few minutes before its occurrence, is uncontradicted, but as to the cir ⁴⁰⁹ cumstances of the accident itself there is the most positive conflict of testimony.

The accident occurred at the intersection of Eastern avenue, which runs east and and west, and the tracks of the appellant, which run north and south, in the bed of Ninth street. At that point Eastern avenue is seventy feet wide and Ninth street, on which the railroad tracks run, is one hundred feet widé. There are two main tracks of the railroad in the middle of Ninth street and there are two freight tracks to the west of the main ones, making in all four tracks occupying about forty feet in width of the bed of the street. On each side of this set of tracks there is a pair of safety gates, across the bed of Eastern avenue, which are operated from a watch box at the south end of the gates on the east side of the tracks.

Anyone standing on the westernmost of the four tracks at its intersection with Eastern avenue has a clear view southerly for a mile, if no cars are on that track. At the time of the accident a row of box cars standing on that track and extending north to the line of the south side of Eastern avenue greatly shortened the view southerly, but even then by leaning forward or taking a step or two easterly the full length of the view would have been restored. On the day of the accident John Gilmore, aged eighteen years, the son of the equitable plaintiff was engaged in driving a one-horse coal cart. About two o'clock in the day while he was going easterly on Eastern ave. across the railroad tracks with his cart loaded with a ton of coal, the cart was struck on the south side by one of the appellants’ engines going north and thrown upon his feet, and such injuries were inflicted upon him that he died therefrom.

The accounts as to the precise method of the occurrence of the collision between the engine and the cart are very conflicting. Thomas Kenny testified that he was standing in the doorway of his residence at the northeast corner of Eastern avenue and Ninth street at the time of the accident and saw it happen. He said that Gilmore riding upon his cart and immediately followed by a similar cart, was going east on Eastern avenue and came to the gates on the west side of the ⁴¹⁰ tracks and found them down. After a few minutes the gate-man, who was on the east side of the tracks, raised the gates and beckoned for the carts to come over the crossing and that Gilmore thereupon jumped down from his cart, took his horse by the head on the north side and started to cross the tracks.

When crossing the second track the cart was struck on the south side by the appellant’s engine and pushed over on to the boy’s feet. The witness said that he standing in his doorway, saw the smoke and smoke stack of the engine over the ■box cars but could not see the engine before it came out from behind the cars, nor in his opinion could the boy who was injured see the engine from his position leading his horse. Witness heard no bell rung nor signal given from the engine as it approached and felt sure that from the position he occupied he could have heard the bell if it had rung. ' He was standing only about twenty feet from the cart when it was halted by the western gate being down. Henry Dean, the driver of the second cart, corroborated Kenny’s testimony as to the facts throughout and said that he heard no bell rung or whistle blown from the engine-Charles Miller who was present at the time of the accident also corroborated Kenny’s tesitmony as. to all of the facts of the occurrence except that he does not mention the circumstance that Gilmore was riding on the cart as he first approached the crossing, nor does he say anything pro or con in reference to signals from the engine as it approached.

Henry Ruth, a cart driver, testified that he was familiar with the crossing and that he was on the spot at the time of the accident. That by reason of the condition of the streets at the crossing it was necessary for the driver of a loaded coal cart to get down and take his horse by the head when crossing the tracks. “That the-engine didn’t ring any bell or blow any whistle there. There was nothing at all done, only after the boy was in danger and could not get out of it the gatekeeper tried to make him come back, it had him dead then and he could not get out of the way.” The witness was standing by Mr. Kenny’s saloon and saw Kenny standing in the door. ⁴¹¹ On the other hand James McGinness testified for the defendant that he was an eye witness of the accident. That as Gilmore came down Eastern avenue toward the railroad crossing he was beating the horse and causing, it to plunge violently and just as he got to the crossing the trace or something snapped and the horse went out of the harness, the boy got down from the cart and spent about-five minutes fixing the harness, in the meatime the witness heard the bell of the east safety-gate ring as that gate came down and that the western gate against the boy (Gilmore) also came down and the gatekeeper was growling at the boy who began to beat his horse again and it gave a lunge and just then the engine came along like a flash and struck the cart..

The engineer, fireman, a conductor and two brakemen all of whom were on the engine testified in substance that it was coming north on the second track at a speed of about five miles an hour with its bell ringing when the first they saw of -the horse it jumped right in front of the engine and, although every effort was made to stop the latter, it struck the cart and shoved it six or seven feet before coming to a standstill. The engineer testified that as he approached the crossing he was •standing in his proper position on the right hand side of the engine in full sight of the gateman and received no warning or danger signal from him. The gate-keeper testified that he saw the boy coming down Eastern avenue beating the horse and driving recklessly and that when he first saw the engine it was about 600 feet away and at that time the cart was under the gate on the west side of the tracks with the horse’s front feet standing between the two rails of the west track. The witness could not put down the west gates because the cart was under them and he might have prevented its backing out.

He put down the east gates •and called to Gilmore to back out of there but got no answer or attention from him; Gilmore got off his cart to look at his harness which was out of order. By the time he got the harness fixed the engine which was coming on all the time was within 25 or 30 feet away when the horse made a plunge from ⁴¹² the west track to the one on which the engine was approaching and that was the last moment he saw the horse as the engine, got between it and him. He had seen the horse continuously up to that time. The bell on the engine was ringing as it came up the track.

The witness, when the boy refused to back off the tracks, called out to him “as long as you have been staying there that long damn it stay another half hour till the engine gets past,” but he paid no attention to the call. The plaintiff offered three prayers all of which were granted. These prayers were such as have repeatedly received the sanction of this Court. In fact the appellant did not on its brief or in the argument of the case object to the form of these prayers but insisted on its special exception to the first one on the ground that there was no legally sufficient evidence that any negligence on its part had caused the injury complained of.

If the testimony was true of the witnesses who swore that they saw