State ex rel. Barnard v. Philadelphia, Wilmington & Baltimore Railroad

Irving, J., delivered the opinion of the Court. The only ground, upon which the appellant’s counsel have claimed a reversal in this case, is that the Circuit Court erred in taking' the case from the jury, by an instruction that there was no legally sufficient evidence, that the death of John R. Barnard was occasioned by the defendant’s negligence; and the only negligence, of which they contended there was evidence, was that the bridge, over Union street, in the town of Havre de Grace, was not entirely covered with plank. The facts are few, simple and uncontroverted. On the morning of the 15th of December, 1881, the deceased was found dead upon a bridge of the appellee, built over Union street, in Havre de Grace.

He lived at Perry ville, on the other side of the Susquehanna River. He had been an agent of the railroad at that place for some years; but had been discharged some time before his death for intemperance. He was consequently perfectly familiar with the road and the localities around the place where he was found dead. He had been accustomed to walking across the bridge frequently by day and by night; and at all times 'of the night.

He was in Havre de Grace the night before his discovery on the bridge dead, and was drinking. He was last seen, near midnight, in the neighborhood of the ticket office, or station, and witness thought he was “pretty' tight.” He was advised not to attempt to walk across the bridge that night, but he insisted he would go home. ⁵⁵⁷ When last seen lie was at the proper passenger platform in front of station house. When found lie was on the other side of the railroad track, between the south platform and the railroad track. He was caught between two cross-ties, outside the railroad track, and between it and the platform, on that side.

He had slipped down as far as his hips. His body was bent forward toward Perry-ville, his breast on one cross-tie and his head on the one next beyond. One shoe and stocking were off, and with his hat, and flask of whiskey (which was still corked) were found in the street below. His neck was broken, and there was a wound on the back of his head, and one on his left shoulder ; and his shins were bruised.

The deceased had one lame foot, which was painful, upon which he wore a large and untied shoe. He said of that foot, that if he “took his shoe off and let the fresh air strike it,” it was not so painful. How he came where he was, or in the condition in which he was no one knew. It was unexplained.

Ho body had seen him go there or saw him there till lie was found dead. The theory of the plaintiff was that he went there to board the train to cross the river ; and because the bridge was uncovered he fell between the cross-ties, and was struck by a train and killed. That is bare presumption. The officers of no train saw him.

There seems to be no greater warrant for that presumption than that he was walking the bridge to his home and fell in as he was found; or sat down in a besotted condition to cool his