State v. Baltimore & Ohio Railroad

Briscoe, J., delivered the opinion of the Court. This was an action brought against the Baltimore and Ohio Eailroad Company by the State for the use of Minnie Dyrenfurth, widow, and the infant children of Solomon Dyrenfurth, to recover damages for his death. He was killed on the track of the appellee near Dee street, in the City of Baltimore, by being run over by a tender and locomotive belonging to the said company. At the conclusion of the plaintiff's evidence, the Court instructed the jury that, according to the' evidence in the case on the part of the plaintiff, the death of Solomon Dyrenfurth was caused by his contributory negli ³⁷⁶ gence, and the verdict of the jury must be for the defendant.

The only question therefore presented to this Court by the exception to the prayer is whether the case should have been left to the jury, or whether the facts and circumstances of the case were so plain and patent as to have justified the Court in pronouncing them contributory negligence in law. The legal principles governing cases of this character are too well established by decisions of this Court to admit of controversy, the only difficulty being the application of the facts of each case as they arise. In the recent cases of State, use of Harvey vs. Balto. & Ohio R. R. Co., 69 Md., 339 , and Baltimore & Ohio R. R. Co. vs. Mali, 66 Md., 53 , this Court adopts the following rule: where the facts are undisputed, or where but one reasonable inference can be drawn from them, .the question is one of law for the Court; but where the facts are left by the evidence in dispute, or where fair minds might draw different conclusions from them, the case should go to the jury. In the present case, the facts are few, and not difficult of solution, there being but one witness to the accident.

The proof shows that Dyrenfurth was killed by a tender attached to a shifting engine belonging to the appellee, while he was attempting to cross ten or more parallel railroad tracks, located where the Baltimore and Ohio Railroad crosses Lee street in the City of Baltimore. He was in full view of the engine, which was running backward, and coming northward on the track toward him. He was going southward toward the engine, and, without stopping to look, attempted to cross the track, within from three to six feet of the engine, which was running at the rate of from ten to fifteen miles an hour. The witness Meller, who was on the same side of the street with Dyrenfurth, and who saw