State Ex Rel. Miller v. Western Maryland R.

Briscoe, J., delivered the opinion of the Court. This suit was instituted on the 10th of August, 1905, in the-Court of Common Pleas of Baltimore City, in the name of the State for the use of Kate M. Miller, widow, and William Donald Miller, and Rosilla C. Miller, infants, against -the-Western Maryland Railroad Company, to recover damages for the death of Elmer C. Miller, husband and father of the equitable plaintiffs, whose death is alleged to have been caused by an accident on the railroad of the appellee while the deceased was upon its cars and being carried from Mt. Hope station to Thurmont in the State of Maryland. The facts of the case are few, and the questions for our consideration arise upon the lading of the Court, at the close of the plaintiff’s case, in granting the defendant’s prayer with ³¹ drawing the case from the jury upon the ground that there is no evidence legally sufficient to entitle the equitable plaintiffs to recover, and the verdict must be for the defendant.

The defendant’s second prayer, to the effect that under the undisputed evidence in the case the deceased was guilty of negligence directly contributing to his death, was not passed upon by the Court in view of its action on the first. The declaration, in substance, states that on or about the 17th day of June, 1905, Elmer C. Miller, deceased, was a passenger and riding upon a train of cars upon the steam railway of the appellee; that he boarded the train at a station on the railway known as Mt. Hope station ; that while a passenger on the train, which was a westbound freight train, the same came into collision with an eastbound freight train of the appellee “wrecking and derailing the trains, or portions thereof, by and in consequence of which, Miller was killed, that the collision and wreck was caused by the gross negligence, carelessness and improper management of the appellee company, and that Miller in nowise contributed to the acts or omissions, causing his death.” • The facts of the case, as presented by the record, are these: The deceased was an employee of the appellee and as such was one of what was called a floating gang consisting of about thirty-nine (39) laborers whose employment was to lay steel rails and to do such other work as occasion required. The gang was provided with a car which was called their “camp.” They went to their work from the camp in the morning and returned to it in the evening.

Under their contract with the appellee, they had free transportation from, and to the camp to the place of their work or to their homes. On the 17th of June, the gang of laborers, among whom was the deceased, stopped their work at Mt. Hope and boarded a passenger train of the appellee going west, Miller was enroute for his home at Thurmont. Some of the men composing the gang when boarding the train got into the baggage car.

The deceased got upon the bumper or platform of the baggage car and there remained until the occurrence of the accident that caused his death. ³² There was evidence that the train at the time of its arrival at the station, was crowded to such an extent that passengers were standing in the aisles of the passenger coaches. Freeburt, the witness, who was in company with Miller, in answer to the question,- if he had looked into every coach to see if each was crowded testified, “we never go back to the back coaches.” He also testified : Q. Then you went to the baggage car ? A. Yes, sir. Q. And Miller went to the baggage car ?

A. Yes, sir. Q. Where did you go, inside or outside of the baggage car ? A. I went inside. Q. Where did