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

Bartol, C. J., delivered the opinion of the Court. John B. Foy while crossing the railroad of the appellee was struck by a passing train and killed, and this suit was instituted for the use of his widow and children to recover damages on account of his death. In order to maintain the action it was incumbent on the plaintiff to prove that Foy’s death was caused by-the ⁸³ negligence of defendant’s agents, and it must not appear from the evidence that want of ordinary care and prudence on the part of the deceased, directly contributed to his death. - After the testimony on both sides was closed, the Court below rejected the several prayers offered by the plaintiff, and by granting the first and second prayers of the defendant, instructed the jury : 1 st. That there was no sufficient evidence of negligence ou the part of defendant or defendant’s agents to entitle the plaintiff to recover. 2nd.

That plaintiff was not entitled to recover, because the negligence of the deceased directly contributed to cause his death. Theaccident occurred at Perrymansville, Harford County, on the 21st day of January 1875, between 2 and half-past 2 o’clock in the afternoon. At that place the railroad runs on a level nearly east and west, and for about 2-t- miles on each side of that point, in a straight line. The county road crosses it at right angles.

It appears from the proof that Eoy left Quinlan’s store, situated on the county road, about 500 yards north from the crossing, to go to his home on the south side of the railroad, about 2-*- miles from Perrymansville. He was riding alone in a covered carriage, called by the witness “ a box carriage,” with the curtains closed, buttoned down on each side and behind, but open in front. Driving at a slow pace, about four miles an hour, he continued on his way without stopping, and as he was crossing the railroad, the “limited express train ” going westward]y, struck against the carriage and killed him. Perrymansville is a railway station, at which some of the trains stop, but “limited express trains” did not stop there.

It is situated in a rural district, not in a town or village. ⁸⁴ It appears by the plat as explained by the witnesses, that the station-house and warehouse belonging to the railroad company are on the north side of the railroad; the former about 65 to TO yards east from the crossing, and the latter about 200 yards. The space between them being about 130 yards. North of the railroad, and on the east side of the county road ninety-five yards from the crossing is a barrack, south-east from that about twenty yards distant, are a corn-house and stable, and between them and the station-house is a shed and water-closet. In passing from Quinlan’s store to the crossing, the sight of the railroad on the east is partially obstructed by these' buildings ; and as stated by the witness James H. Michael, for thirty-five steps before reaching the crossing the station-house and warehouse totally obstruct the view.

The train was moving at the usual speed, forty to fifty miles an hour. The usual signal was given by blowing the whistle at the whistling post, about one-fourth of a mile before reaching the crossing. The conductor and engineer were both on the locomotive, looking out, and as the train was passing the station-house, saw Foy’s horse and wagon approaching the track, when two short sharp whistles were given, the usual danger signal ; it was then impossible to stop tlie train or to avoid the collision. These are the uncontested facts as disclosed hy the evidence,'so far as it is material to state them, and the question is do thóy furnish any evidence, which it was proper to submit to the jury, of negligence on the part of the railroad company or its agents in the management of the train?

We have looked in vain for any such evidence, and the learned and ingenious counsel of appellant has failed to point it out. The railroad company was engaged in the prosecution of its lawful business. It was bound only to use ordinary and reasonable care to avoid inflicting injury upon others. ⁸⁵ There is no proof of incapacity of the agents in charge of the train, or of any negligence on their part. It is said there was no sufficient lookout upon the train, but there is no evidence whatever to sustain this charge.

The only testimony on this subject is that of the engineer and conductor, both of whom were on the locomotive looking out. The charge rests exclusively on the