Pennsylvania Railroad v. Cecil

Pearce, J., delivered the opinion of the 'Court. This suit was brought by the appellee to recover damages for an injury occasioned by the alleged negligence of the appellant, and the result was that the appellee was given a verdict and judgment for $8,000. The principal facts of the case are these: The plaintiff, Prank Cecil, on December 12th, 1906, being then a little over nineteen years of age, was in the service of the George’s Creek and Cumberland Railroad Company as a brakeman upon a train of coal cars, and had been so employed for about five weeks previously. He had been manumitted by his father, and' authorized to contract for himself, and to receive and retain the wages of his labor.

The George’s Creek and Cumberland Railroad connected with-the Pennsylvania Eailroad, and delivered loaded coal cars to it for transportation at the State Line yards of the latter company, and for this purpose had a contract for what was termed “‘running rights” over the tracks of the Pennsylvania Eailroad at its State Line yards. A copy of a blue print plan of said yard showing all these tracks and the exact spot of the accident will be inserted in this opinion, by the reporter. When approaching this yard for the delivery of coal cars, the operator in a tower of the Pennsylvania Eailroad signals the approaching train, directing what track it shall take in the yard, and at the time of this accident the operator signalled the engineer of the coal train to take track Ho. 4, indicated on the copy of the blue ²⁹⁵ print. The coal train being on the main track when this signal was received, it was necessary, in order to reach track Ho. 4, that four switches should be opened and passed through, and it was the dirty of the plaintiff as brakeman to open these switches, being sometimes aided in this by some employee of the Pa.

R. R. Co. On this occassion he stepped from the slowly moving train, and went ahead of it to open these switches. He states that he threw the switch from the main track and also those to the third and fourth side tracks, while one of the defendant’s car inspectors, who was nearby, threw the switch to the first side track, and he thinks also that to the second side track, and in this the recollection of the engineer, Mr. Carberry, agrees with that of the plaintiff; but Mr. Porter, the car insector in the day time, and the only one shown by the record to have been present that morning, testified that he did not open any switch. While these several switches were being opened, the train moved steadily in, about as fast as a man could walk, according to the testimony. When the switch leading into track Ho. 4 was opened, the plaintiff then stepped into the space between tracks Ho. 3 and' Ho. 4 and walked back between these tracks to mount the moving train as his duty required him to do in order to cut off the engine and leave the cars on track Ho. 4.

As the train came on, he caught the hand hold on second car behind the engine, placed his foot in the stirrup provided on each car for the purpose, and attempted to swing up on the car, when he was caught and rolled between the car he was mounting and a car of the Pennsylvania Eailroad left standing on track Ho. 3. As the train moved further out on track Ho. 4, he dropped to the ground unable to walk or stand, and soon after was sent to a hospital at Cumberland where he remained two weeks. His hip and shoulder, or collar bone, were injured, the latter being broken, and the sciatic nerve somewhere in the hip being seriously injured, resulting in the wasting of the muscles of the left leg, the shrinkage of the whole limb, and a total inability for any labor sufficient for his support. The testimony of Dr. Wiley, as well as of ²⁹⁶ the other physicians who testified, was that there is no remedy for so serious an injury to the sciatic nerve; that neither the knife nor medicine does any good.

The car standing on track Eo.. 3 with which the plaintiff came into contract is designated in the testimony as a “cornered” car, and it was one of several cars standing there, that one being nearest to the switch. A “cornered” car as explained by the testimony, means one placed so near the opening of the switch, as not to leave the regulation space required for safety between it and cars on the next track leading out of that switch. This regulation space, according to the testimony of Mr. Burket, one of defendant’s witnesses, and supervisor of its tracks at that yard, was from 2 ft. 3 in. to 2 ft. 1 in., according to the width of the cars, and the evidence showed that the space between the rear of this “cornered” car, and the car passing on track Eo. 4, was not over six inches. 'The evidence also was that it is the custom of well regulated railroads to set posts in the ground near switches, indicating the distance from a switch where cars can he placed without “cornering,” and that there were.no such posts or any other guides for that purpose at that place. Mr. Porter, one of defendant’s witnesses, and car inspector at that yard, testified that at the time of this accident he was standing near the shanty shown on the plat and saw the train as it was approaching the switch to enter track No. 4; that he did not know whether he had then inspected these cars since they were left there, and did not know the south car was cornered, hut he saw the person who. threw the switches as the train came in, and that he recognied the plaintiff as the same person, and that he called his attention to that ear, and said “it did not look like it would clear,” and that the plaintiff went “and examined the place same as I did, and said he thought it would clear all right — he would try it; he stood on the inside rail of No. 4 and touched the car with his hand.

The rales are if you can stand on a rail and touch the car across from you by the ends of your fingers, it will clear all right.” The plaintiff denied this or any other conversation ²⁹⁷ with Mr. Porter at that time. The inherent improhability of such a conversation and experiment at that time must occur to the mind. According to the testimony of Mr. Car-berry, the distance from the main track to the point of the accident was about twice the length of the Court room in which the trial was held. The appellee’s brief, not contradicted verbally or otherwise by the appellant, states this distance to be 120 feet.

The undisputed evidence is that the train came steadily in about as fast as a man’s ordinary walk. Estimating this at three miles an hour, a man would cover 120 feet in about thirty secoonds. While the train was moving over this distance the plaintiff had to keep in advance of it, and according to Porter’s testimony opened three switches. It is hard to understand how there was time and opportunity, in addition to these duties, to hold the conversation and make the experiment testified to by Porter, but this conflict of testimony was for the jury, and appears to have been settled to their satisfaction.

At the dose of the plaintiff’s testimony, the defendant asked the Court to instruct the jury that under the pleadings in the case the plaintiff had offered no evidence legally sufficient to entitle him to recover and their verdict must be for the defendant, but this instruction was refused and the first exception was taken to that ruling. As the defendant however proceeded with the case by offering evidence in its own behalf, that exception has been waived, and will not be considered. After the testimony had been concluded upon both sides, the plaintiff offered two prayers, the first reciting the facts necessary to a recovery, and the second being the usual prayer as to the measure of damages in cases of this character; and the defendant offered three prayers, the first being a renewal of the prayer to take the case from the jury, and the second and third being founded on the doctrine of contributory negligence as claimed to be established by the testimony of Porter as mentioned above. The Court granted the plaintiff’s first prayer in connection with the defendant’s second prayer, which was conceded by the plaintiff, and also granted ²⁹⁸ the plaintiff’s second prayer which was conceded by the defendant as correct, if the plaintiff was entitled to recover at all, and the Court rejected the defendant’s first and third prayers.

We shall request the reporter to set out the plaintiff’s first prayer, and the defendant’s second and third prayers. It is not necessary to set out the plaintiff’s second prayer, on the measure of damages. The defendant’s first prayer however is unusual and we will transcribe it here: “The defendant, by its counsel, prays the Court to instruct the jury that under the pleadings in this case, the plaintiff has offered no evidence legally sufficient to entitle him to recover, and their verdict must be for the defendant.” The joeculiarity of the prayer is that while offered after the close of testimony on both sides, it asks for a verdict for defendant upon the testimony of the plaintiff alone. It is, word for word, the same prayer which was offered and rejected at the close of the plaintiff’s testimony.

As we have already said', all exception to the insufficiency of the plaintiff’s evidence alone has been waived by the defendant. Barabasz v. Kabat, 91 Md. 55 ; Cowen v. Watson, 91 Md. 344 . In the latter case Judge Fowler said: “By proceeding with the case after its first prayer was refused, the defendant must be held to have waived its exception to that action of the Court.” And that is now the settled law of this State based upon sound reason and policy. In