Washington, Baltimore & Annapolis Electric Railroad v. State ex rel. Goodwin

Stockbridge, J., delivered the opinion of the court. This is a suit brought under Lord Campbell’s Act by a father to recover substantial damages from the appellant, by reason of the hilling of Charles B. Goodwin, on the line of the W., B. i& A. Electric Railway Company, at or near to what is known as Kelly’s Crossing, situate near Camp’ Meade. The accident took place on November 20th, 1918, about 2 o’clock P. M., and therefore in broad day light. The important facts are very simple.

The deceased, Charles B. Goodwin, had been employed as a plúmbea.’ by Iianley & Co. at Oamp> Meade. On the day in question he left Camp Meade for the purpose of returning to Baltimore, and, as he neared the tracks of the W., B. & A. Railway Company, he enquired of several persons as to when he could get a train which would take him to Baltimore, and was told that he might expect a train to pass at almost any time, and was directed to the south side of the appellant’s tracks, where was a cinder platform used alike for the reception and discharge of passengers and freight- TIe crossed to or nearly' to this cinder platform, and was then observed to turn around and apparently retrace his steps towards the north side of the tracks, and there came in contact with a train composed of a motor and five trailers coming from the east. The deceased was struck by this train, knocked down and, though still living when picked up>, died before he could be transferred to the emergency hospital at Camp Meade. ⁵⁴¹ Tbe plaintiff alleged that the accident was caused by the negligence of the employees of the W., B. & A. Bailway in some one or more of three respects: first, a failure to give notice or warning of the approach of the train by a watchman stationed at the crossing; second, the omission of any whistle or notice given by those operating’ the motor of the approach of the train, or third, because of the supposed excessively high speed at which the train was being run. Persons not connected with either of the parties, litigant, but who wore at or near the scene of the accident, testified that the watchman stationed at that point by the railway did not give any warning, and apparently they are somewhat in doubt as to whether they saw the, watchman at all, or whether’ he was in the watchman's box.

These same witnesses likewise testified that they had heard no whistle or signal emanating from the train itself, though as against this latter is the positive testimony of the motorman of the train that he did give a signal whistle, and of the watchman that he. was in his proper place to give warning of the approach of the train. There were six hills of exception reserved during the trial of the case, of which five had to do with the rulings of the Superior Court of Baltimore City, in which the case was tried, upon questions of evidence, and one to the action, of the court upon the prayers. With regard to the rulings upon the first and fourth bills of exception, no error is attributable to the court, while with regard to the third, the question was a close one, hut if there was error committed, it presented a case which under the prayers was error without injury. There was, however, serious error committed in the rulings of the court which are set out in the second and fifth bills of exception.

These were questions addressed to Mr. and Mrs. Goodwin, the parents of the deceased, with regard to their expectations, or what the deceased might have said to them of his intention to provide for them during his life. ⁵⁴² In the one case it was palpably a question of hearsay, and in the other an expression of opinion only, with regard to what might be anticipated to be done by a son forty-five years old for the support of his parents. The admission by the court of this testimony could not have operated otherwise than prejudicially to the defendant company. At the conclusion of the testimony the plaintiff” offered one prayer and the defendant ten; the prayer of the plaintiff was granted, and the fourth, fifth, ninth and tenth prayers of the defendant. The plaintiff’s, prayer’ was simply a prayer on the measure of damages.

It contained nothing as to- the right of the plaintiff to i*eeover, and a prayer of that character has been sustained by this Court in the case of Director General of Railroads v. State, use of Hurst, 135 Md. 496 . When we come to consider the defendant’s rejected prayer’s, the first, second and third are all framed for the purpose of having the ease withdrawn from the consideration of the jury, and these were properly refused. They involved questions of fact which, whatever may be the view of this Court in regard thereto, nevertheless rested distinctly within the province of the jury. The seventh and eighth prayers were property refused.

This brings us to a consideration