Western Maryland Railroad v. Kehoe

Bryan, J., delivered the opinion of the Court. This is the second appeal in this case. The opinion of the Court in the former appeal is reported in 83 Md. 434 . The decision then delivered, as a matter of course, settled the law on the questions involved, for all subsequent litigation in the case.

The evidence in some particulars is different from that given at the former trial. We will refer to such portions of it as it is necessary to consider for the determination of the questions now presented. The plaintiff testified that he lived near Howardville, in Baltimore County; that on the •thirtieth day of July, eighteen hundred and ninety-five, in company with two younger brothers, after driving to several places of resort, at some of which he drank considerably ; on his way home he drove along the Seven Mile ⁵¹ Lane to the place where it crosses the Western Maryland Railroad; that his two brothers were twenty or thirty yards ahead of him; that he slowed down to a walk, looked and listened, but did not hear or see anything; that the night was pretty dark; he saw no car and did not hear any alarm-bell or anything of the sort; that as you approach the crossing, a large store-house and cedar tree would strike your eye to the right before you reach the railroad track; that beyond the railroad to the right towards Sud-brook Park there is a growth of wood; that any cars on the track would be between him and the shade of the wood; that he started his horse across the track and she (a mare) made a jump ; he tried to stop her, and something struck his buggy on the right-hand side; that was the last thing he remembered until next day, when he found himself in bed at his father’s house with his leg cut off; that the mare which he was driving was gentle, a lady could drive her; that he had been drinking beer and whiskey; that he had frequently drunk more, and it had never made him drunk; on cross-examination, he said that he judged by the sound that his brothers were twenty or thirty yards ahead, that he could not see them. Thomas Kehoe, one of the plaintiff’s brothers, testified that when they reached the railroad, it was half-past nine o’clock at night or ten; that he and his brother Bart were in one buggy and the plaintiff in another; that they (Bart and himself) stopped at the railroad, but did not see or hear anything, and they went across; that the night was very dark; that at the railroad they heard no bell nor whistle, saw no light displayed, noticed none in any of the houses, nor any flagman, nor any light on the lamp-post; that he knew the plaintiff’s horse ; it was gentle.

On cross-examination, he said it was rather dark; that the moon had been shining, but it was about down and it was rather cloudy. O’Boy testified that he was one ol the crew of a freight train of the Western Maryland Railroad on the night of the accident, and was on the west end of the car as it was drifting on the main track ⁵² towards the train standing east of the crossing when the car struck a man’s buggy right on the crossing, a little on the east side ; that the car was half over when the buggy was struck ; that he saw a horse’s head, and saw something fall out that he took to be a cushion; that he did not hear any bell ringing; that when the car drifted down until it was against the train, he got off, and went back and found the plaintiff lying on the track with his face up further away east of the crossing than he expected to find him, he seemed to be closer to the planking when he fell; that when he saw him he cried out, "Stop them cars, for God’s sake; ” that the car was west of the crossing and that he tried to pull the plaintiff away, but could not, and was himself struck on the shoulder; that plaintiff was run over before he could get the plaintiff off; that he is still in the employment of the railroad; that it was a dark night and he was on the end of the car farther away from the crossing and the light was with him and when the buggy was struck the light was sitting on the coupling block in the centre of the car; it was a box car and higher than he could reach from where he stood, eight or nine feet. On cross-examination, he testified that the length of his car was thirty feet, one of the small Western Maryland cars; that he saw the first buggy go by at a rapid rate; he was a car and a-half away when he heard a buggy, and he tried to wind the brake chain, but it would not work, and the car ran on the crossing, and he saw a horse’s head on the south side of the car; that he had heard the sound of a horse’s hoofs, but did not hear anything else ; that he had to look around and see the length of a car when he saw the horse’s head; that the horse was going at a good gait, not walking ; that the plaintiff fell about five feet east of the crossing towards Baltimore ; that we (meaning brakemen) can stop three loaded cars with a couple of good brakes in forty or fifty feet ; that he could stop a single empty car much quicker ; that when he went to Kehoe the car which ran over him was a car-length off; that he found a broken flask by the side of ⁵³ the track and there was a stain of liquor, which he supposed to be whiskey. On re-examination he testified that if the buggy had come straight down the county road, it would have struck the car.

Sapp testified that he took beer with plaintiff about nine o’clock on the night of the accident, and that the plaintiff was then “ all right; ” that the plank-crossing between the railroad tracks was not the full width of the county road, and that there was a space of eight feet on each side of the plank-crossing within the limits of the county road. There was other testimony tending to show that the county road was thirty feet wide, and that when plaintiff was run over he was lying within its limits; there was also other testimony that the plaintiff’s horse was gentle. Several witnesses testified to the good character of the plaintiff for sobriety; and two physicians who attended him testified that in their opinion he could not have been intoxicated at the time of the accident. Atwood testified that he was a surveyor and civil engineer, and that he had made a plat representing the railroad station ; he described the measurements on the plat.

On cross-examination he testified that a person stopping on the county road twenty or thirty feet from the crossing going in the direction which the plaintiff was driving, could see towards the west (the opposite direction from Baltimore) about five hundred feet; that there was nothing to prevent him from seeing the track, or anything on the track from that distance. He did not say that he could see that distance on the night of the accident, at the time it occurred ; and he seems to have known nothing about the accident, or whether the night was light or dark. This testimony was before the jury, and it rested exclusively in their judgment whether they would believe it or not. If the , plaintiff slackened his speed on approaching the crossing, and looked and listened ; and heard nothing and saw nothing ; if the night was very dark, and there was no light in such a position as would enable the plaintiff to see the approaching car when he looked, and if no bell was rung, or other signal given, he certainly was guilty of no ⁵⁴ negligence in attempting to cross the railroad track.

And if under these circumstances he was struck by the car, and thrown in an unconscious condition to the ground, and run over by another car under the circumstances described by O’Boy, the defendant was certainly responsible for the injury inflicted upon him. The evidence on these points was' very materially contradicted by the testimony on the part of the defendant. But most undoubtedly the case could not be withdrawn from the jury on that account. The Court cannot decide between opposing witnesses.

The jury must determine questions of fact, and as said in Charleston Insurance Co. v. Corner, 2 Gill, 427 , “no action of the Court should control the exercise of their admitted right to weigh the credibility of evidence.” If the jury believed the evidence, it was competent for them to draw the inferences which we have mentioned. We shall refer to this matter again in another portion of this opinion; but we may as well say that it is no part of our purpose to make an abstract of the evidence, but merely to refer to such portions of it as will illustrate the prayers in the case. The evidence for the defendant stated that an extra freight train running without scheduled time, coming from Baltimore, arrived at the Howardville station about ten o’clock on the night in question; that the train stopped about a car’s length on the east, or Baltimore side of the crossing; that the engine was cut off, and it pulled up beyond the crossing, and was then backed into a siding on which five cars were standing ; that the conductor of the train took the first and last car and threw one of these cars on the main track and let it run down towards the train which remained standing to the east of the crossing; this was a box car; that three gondola cars were put back on the side track. Wildersin, the conductor, testified that as he came down the siding towards the crossing with the engine and one car he heard the brakeman cry out that a man was run over; that he passed over the crossing and found him ; that he was lying on his back about eight feet on the Baltimore side, very ⁵⁵ close to the clearance-post; that he was on the siding, with one leg over the siding track towards the main track; that he, the witness, was about one hundred and twenty-five feet from the crossing when he heard a team cross over; heard the team coming at a rapid rate and looked around and the team went over, and he made a shift and cut O’Boy off with the car, and when he got down there witness heard the rumbling of another team ; that he heard a crack, and he rode the car down and coupled it up, and brakeman Keefer cut the three cars off and rode them in on the siding, and that when the witness came down there was nothing to be seen of the team; that he supposed from the way they were rattling that the teams were driving at a gallop ; that it was a partly moonlight night; that there was a little moon, but that witness could see plainly from where he was at the switchboard to front end of his train where he left it standing east of the crossing; that the brakeman who had charge of the three cars which were running down the side track had a light in his hand; that the brakeman, O’Boy, who had charge of the car running down the main track also had a light, a regular railroad lantern; that the bell was ringing and the whistle sounded as the train approached Howardville from Baltimore; that the cars as they were’ shifted down the main track might have been moving three or four miles an hour; that they were started from the switch-post, which was a hundred and fifty feet from the crossing; that when the plaintiff was picked up there was a whiskey bottle lying beside him, the whiskey was running down over the switch-plate ; on cross-examination the witness stated that the bell was ringing while they were pushing out, but was not ringing while the locomotive was not in motion; that Keefer could stop the gondola car at any moment after he used his hands on the brake.

Dotterer testified that he was a fireman on the freight train from Baltimore ; that he was ringing his bell all the time the shifting of the cars was going on ; that there was light enough for him to see the main portion of the train east of the ⁵⁶ crossing, and there was nothing to prevent any one coming down the Seven Mile Lane from seeing the cars and engine on the main track and switch at the distance they were from the crossing. Norman testified that he was the engineer of the extra freight train ; that the box car ran down the main track at the rate of three or four miles an hour; that after the box car had about reached the crossing they sent the three cars down the switch; that the switch was one hundred and seventy-five feet from the crossing, and that he could see the train east of the crossing; that it was a tolerably fair night, and an object as large as a box car could be plainly seen at that distance; that the moon might have been an hour and a-half high, or something like that; that he did not think that the moon was down, that it may have been behind woods, that “ it would be so from where we were ” (in the words of the witness). Keefer, the brakeman, testified that he did not cut off his cars from the engine until O’Boy with the box car had passed the clearance-post below the crossing and he himself saw that the cars had passed the post; that the cars under his charge were gondola cars, one loaded with lime and two which were empty ; that he was standing between the loaded car and an empty car, with the empty car ahead of him and two behind him ; that any one coming down the public road who stopped within twenty feet of the crossing could have seen both the box car and the three cars