62 Md. 479 | Md. | 1884
delivered the opinion of the Court.
The motion to dismiss this appeal must he overruled. It is apparent from the proofs submitted that the delay in the transmission of the record, was not occasioned hy any fault of the appellant, hut was the fault of the clerk, who so admits on oath.
On the night of the 9th of July, 1881, William J. Allison, the father of the equitable plaintiff, is alleged to have been killed hy a train of the appellant’s railroad cars passing over him; and this suit is brought in the name of the State, for the use of his only child, to recover damages for the death of the father, hy the negligence of the defendant’s employés.
The first exception is to the allowance of an amendment to the plaintiff’s narr. and titling to it. The theory of the exception is that an entirely new party has been admitted contrary to the provisions of section 29 of Article *75 of the Code. But this is a clear misapprehension. By examining the record we find the suit was brought hy titling in the name of the State, use of Grace M. Allison, hy her next friend Catherine Beetz. When the declaration came to he filed, in the titling thereto, and in the commencement thereof the name of the State was omitted, and the leave asked was not to amend the titling to the suit, but that of the declaration itself, and the declaration also. The granting of this motion allowed the plaintiff to do no more than make the declaration conform to the original titling, and the summons which issued in pursuance of it, and was entirely justified hy the 23rd section of Article 75 of the Code and the uniform practice which has obtained thereunder. There was therefore no error in that regard.
The third exception is to the refusal of the Court to take the case from the jury by granting the defendant’s prayer to that effect offered at the close of the plaintiff’s testimony. As this prayer was renewed after the defendant’s testimony was all in, and was again refused, and exception was taken to that refusal and the granting of certain instructions on the behalf of the plaintiff as well as the rejection of others on the part of the defendant, all which is presented by the fourth exception, we shall consider that question in the light of the whole case as presented by the proof embodied in all the exceptions.
The main facts which need recital are undisputed or uncontradicted. At a point in the City of Baltimore, where the appellant’s road forks, and one track, called the blew York cut off, goes on to the ferry, and the other track curves off and runs down to the appellant’s coal hopper .yards, there is a watch box, where the defendant keeps a watchman or a switch tender. From this point, to the hopper yards of the appellant, the appellant’s road runs on its own private property, condemned and purchased for the purposes of its road. Although it passes through the ■city, that portion of the road where the accident occurred passed through an uninhabited and unbuilt up portion of the city, where there are and were no streets, opened and used as such. Streets are laid down on Poppleton’s plat, to be opened whenever the needs of the city require it because of expansion in that direction; but as yet it is uninhabited, and no streets have been condemned or opened. Fort Avenue is a public highway and quite a travelled thoroughfare. This track crosses Fort Avenue in its route
At the point where the accident occurred no street is-projected for the future even. There are two hopper tracks; and before reaching Fort Avenue, the engine was usually switched off, and running back on the. other track to the watch box, got on the other track again to push the cars to the hopper yard. About twenty-five minutes past. 1 o’clock a. m. on this occasion the appellant’s engine, with tender and twelve loaded coal cars, passed the watch box,, and went down toward Fort Avenue. The train went down on the south track, and the engine came hack in from three to five minutes, on the other track, and then the engineer informed the watchman that a man was killed on the track. The train was moving two, three, or four miles an hour. No hell seems to have been rung in passing the watch box, but the head light was burning all right, flow the deceased came to he there, or when he' came, no one could tell. A drunken man had been seen an hour ■ or more before down the track going in that direction, and toward the watch box. Although shown to be ordinarily sober and opposed to drinking, even to total abstinence, there was uncontradicted evidence from two persons that
Upon this state of facts the appellee wholly relied for recovery upon alleged violations of the following ordinance of the city which was put in evidence : ’ “ When a locomotive engine is used within the limits of the city, a man shall be required to ride on the front of the locomotive engine when going forward, and when going backward, on the tender, not more than twelve inches from the bed of the road; nor shall any locomotive be propelled at a greater speed than five miles per hour except where there are grades requiring greater speed, and then it shall not exceed six miles per hour; and-the person or persons having charge of such locomotive engine shall ring a bell when approaching any and every cross street, and no steam
It is claimed on the part of the appellee that this ordinance was violated in not having a person to ride in front of the engine within twelve inches of the ground to look out and prevent accidents. It has also been shown that there was no bell rung, but as the ordinance only requires, that to be done at the approach of street crossings, and there were no cross streets where this accident occurred, and they were not near enough to Port Avenue to require the bell-ringing to be begun for it, that can hardly be pressed as a sufficient omission to be of itself a cause of' action in this case. Indeed it was not seriously insisted that it was.
To avail themselves of the confessed omission to do what the ordinance required of the Rail Road Company in respect to the look-out, in passing through the city, the appellee's counsel argued, that notwithstanding this was the private right of way of the appellant, yet there was a path along the track, and people were in the habit of' using it for the purpose of passing down to and from Fort Avenue, and beyond, so that it had become such a thoroughfare that the company in the use of its right of way for its engines and cars were under obligation to use it with special reference to this user by the public, and to-exercise special caution in passing over the' road to avoid injuring any one happening to be on the track.
In reply, the appellant contends, that from the mere-permissive user of the path by the side of the track, the public has acquired no right to use it, and where there is. no right there can be no obligation beyond that which ordinarily attaches to the use of engines and trains upon
A right of way of a railroad company is the exclusive property of such company, upon which no unauthorized. person has the right to he, and any one who travels upon such right of way, as a footway, and not for any business with the railroad, is a wrong-doer and a trespasser; and the mere acquiescence of the railroad company in' such user does not give the right to use it, or create any obligation for especial protection. Illinois Central R. R. Co. vs. Godfrey, 71 Ill., 500. Whenever persons undertake to use the railroad in such case as a footway, they are supposed to do so with a full understanding of its dangers, and as assuming the risk of all its perils. 71 Ill., 500; M’Laren vs. Indianapolis & Vincennes R. R. Co., 8 American and English Railroad Cases, 219; The Jeffersonville, Madison & Indianapolis R. R. Co. vs. Goldsmith, 47 Indiana, 43; Railroad Co. vs. Houston, 95 U. S., 702, and Railroad Co. vs. Jones, 95 U. S., 442; 1 Thompson on Negligence, 453, 459; Morrissey vs. Eastern Railroad Co., 126 Mass., 377. In Maenner vs. Carroll, et al., 46 Md., 212, which was a suit for injury received by falling into an excavation which had been dug on the private property of the defendant, over which persons were in the habit of passing, but which was not a public highway, this Court declared the same principle as controlling, and adopted the language of the Court in Hounsell vs. Smyth, 7 C. B. N. S., 731, that in such case, “one who uses the waste has no right to complain of an excavation he finds there. He
Inasmuch, therefore, as the presence of the deceased upon the road of the appellant at that point was a trespass, it would seem to he necessary to show some negligence, amounting to the omission of a general and .imperative duty toward him notwithstanding, which ought to subject the appellant to liability in the action brought. This the appellees think they find in the violation of the city ordinance with respect to the step and look-outs provided for in it. To this appellant makes several replies; first, that there is an entire failure of proof to show that this omission tended in the slightest degree to bring about the fatal accident; or that its observance would have tended to prevent it; secondly, that the fact of the deceased being in so perilous a place, without any assignable reason, and that too as a trespasser at a most unreasonable hour, was such patently contributory negligence as entitled the case to he taken from the jury; and lastly, that the ordinance is so manifestly unreasonable, that it cannot be complied with as engines are now constructed; the engine then used by the appellant being such, as is now generally in use, and as the step did not exist and could not he placed, and a person could not sit, where the ordinance provided, without imminent danger to life, the ordinance must he held inapplicable and void.
We are clearly of opinion that this case ought not to have been submitted to the jury. How the accident occurred and why, is shrouded in as much mystery as it was in Northern Central Railway vs. State, use of Burns, 54 Md., 113, and State, use of Barnard, et al. vs. Phil., Wilm. & Balto. R. R. Co., 60 Md., 555; and to hold the
Judgment reversed. ■