71 Md. 590 | Md. | 1889
delivered the opinion of the Court.
In this case the action is brought against the defendant, in the name of the State as plaintiff, for the use of the father whose son was killed by what he alleges to have been the wrongful act, neglect or default of the defendant corporation. Code, Art. 61, sec. 1., The defendant pleaded that it did not commit the wrong alleged; and upon trial there was a verdict for the plaintiff, and judgment thereon. The defendant has appealed.
The accident happened on the defendant’s road, at a point near Watersville, on the 23rd of August, 1888, about 1 or 2 o’clock in the day, and where no person, unconnected with the operation of the road, had a right to be. The boy who was killed, is represented to have been near or about 11 years old, and smart and intelligent for his age. The train by which he was killed was east bound, and was running on a down grade, at the rate of 30 or 35 miles per hour. It was somewhat behind time, and bore a signal for a following train on the same track. It appears that the boy was hired to. a Mr. ^Fnglebee whose house was situated immediately on the north side of the road, the road having two tracks, and the south track being the one upon which the train was running that produced the accident. It was a passenger train*of seven cars. Just before the accident, Mrs. Unglebee sent the boy on an errand to the house of a neighbor, some three or four hundred yards distant, on the same side of the road as her own, but west from her house. When the boy started, he attempted to go up the tracks of the railroad, but Mrs. Unglebee, observing his course, called to him,' and forbade his going on the railroad, and cautioned him to avoid the danger of the cars. The boy left the tracks of the road, and pursued his way on the north bank or side thereof; but on his return he got upon the tracks of the road, where he was overtaken by the train. Just east of and below the house of Unglebee
This was the evidence, and the only evidence furnished, on the part of the plaintiff, to prove under what circumstances the boy was killed. That he was not in fact first struck on the crossing, is reduced to a certainty, when we consider the speed of the train and the position of the boy on the engine when first seen by Mrs. Unglebee; though it is not perceived that this fact would make any material difference in the case. Nor
Furley, the locomotive engineer, testified that when the train passed Onglebee’s house on the 23rd of August, 1888, it was 40 or 45 minutes late, and was running at a speed of 30 to 35 miles per hour. He could have stopped the train, he supposes, within 175 or 200 yards, by applying all the means available. The space between the two tracks is 7 feet, and between the ends of the cross-ties of the two tracks 3 feet. His train was a mail train on the south track going to Baltimore; no train passed on the north track, at that point, between the hours of 1 and 2 o’clock that day; there would have been space enough between the tracks for anybody to have avoided danger from passing trains, walking or standing in the middle ditch, or the space between the ends of the ties; “witness was on the proper lookout as his train approached Unglebee’s house; that his place is on the right of the engine, and that of the fireman on the left. That he did not blow the whistle, on the day in ques
hTorris, the fireman on the train, was also examined, and he appears to have been the only witness who saw the accident as it actually occurred. He says that as the train was approaching Unglobee’s he “saw a boy— could not tell whether he was a man or a boy — running down the track, right between the south and north tracks, right in the centre ditch; he was running in the direction of Unglebee’s house: When witness first caught sight of him, he supposes the train was 115 yards from him; supposes the boy was 40 or 50 yards west of the crossing when he first saw him; he appeared to be running as fast as he could; he was not on the track at any time until he got hit, then he fell; the boy was hit right opposite the house; witness saw the engine get within three feet of him, and the little fellow stumbled and fell right out on the pilot, and it threw him up and he came down and lit on the flagstaff, and stayed there about a second more or less; the flagstaff broke off with him, and the boy fell to the ground.” Witness saw the boy stumble, “and saw when he fell, and did not take his eyes off of him until he took those somersaults when he fell; witness then told engineer the boy was struck: The boy had every chance in the world to get away; if he had stayed where he was the engine would not have hit him; if he had not stumbled and fallen over he would
We have set out t-he testimony .thus fully because the first and principal question on this appeal is, whether there was any evidence legally sufficient to be submitted to the jury, from which they could find the existence of negligence by the defendant, as the direct cause of the injury complained of.
Upon the whole testimony, the plaintiff asked for certain instructions, all based upon the assumption that the evidence, if believed by the jury, was sufficient to establish the fact of negligence by. the defendant; but, in lieu of the first prayer offered, the Court instructed in terms of its own, and refused all the plaintiff’s prayers, except the seqond. The defendant offered several prayers; by one or two of which the Court was asked to instruct the jury that there was no evidence legally sufficient upon which the plaintiff could recover; but the Court rejected all the defendant’s prayers, except the eighth and ninth, and by the granting of which latter prayers the jury were instructed that negligence was' not to be inferred from a failure to blow the whistle at the Unglehee’s crossing, nor because of the fact that the train was behind time.
Upon the instructions granted, the case was submitted to the jury; hut upon what they based their verdict is quite beyond the power of this Court to perceive. It is clear enough that the boy was killed by a collision with the engine, but it is equally clear that he was upon the defendant’s road where he had no right to he, and from which he had ample opportunity to escape from all danger. We are at a loss to perceive in what the imputed negligence of the defendant consisted. The men in charge of the train were not bound to stop, or even to' slacken the speed of the train, unless they saw that
It has, however, heen argued in support of the case the plaintiff, that it was competent to the jury to accept and act upon such parts of the testimony of the witnesses for the defendant as they deemed proper, and to reject such other parts as they deemed unworthy credit; and hy so doing they might well have found that there was negligence on the part of the defendant. But there was really no conflict of evidence in the case, and nothing to disparage or discredit the testimony of any witness examined. But conceding the right of the jury thus to deal with the testimony of an unimpeached witness, before they could find a fact opj>osed to or in conflict with the testimony so rejected hy them, they should have legal and competent evidence before them upon which to base their finding. The jury may refuse-to give credit to the statement of a witness, hut they are not at liberty to infer from the rejected testimony alone, and because they do discredit it, a fact the very reverse of what has been sworn to by the witness. Therefore, supposing the jury to have disbelieved the testimony of the witnesses for the defendant, or all such portions of it as tended to prove the non-existence of negligence on the part of the defendant, yet there is no portion of their testimony that tends to establish tfie existence of negligence, and consequently the case stands as it would have stood upon the testimony given on the part of the plaintiff alone; and that, as we liaveseen, wholly failed to make a case for the plaintiff. In our opinion there was error in refusing to direct the jury that there was no evidence before them legally sufficient upon which they could find for the plaintiff. The judgment, therefore, must be reversed.
Judgment reversed.