Philadelphia, Wilmington & Baltimore Railroad v. Burkhardt

83 Md. 516 | Md. | 1896

Russum, J.,

delivered the opinion of the Court.

This suit was instituted by the appellees, the plaintiffs below, to recover of the appellant for personal injuries alleged to have been received by the female plaintiff in consequence of the culpable negligence of the appellant’s servants in the management of a “ shifting engine,” at a point in Baltimore City where the railroad of the appellant is crossed by O’Donnell street, otherwise known as Mount Carmel road. The verdict was for the plaintiff, and the defendant has appealed; and it is sought by this appeal to have corrected certain alleged errors involved in the refusal of the Court below to grant certain prayers offered by the defendant, and in granting the two prayers offered by the plaintiff. The facts of the case are few and simple. On the 24th of April, 1894, the female plaintiff was driving, alone, to her home, by the way of O’Donnell street, or the Mt. Carmel road, and so across the railroad of appellant. At this crossing the appellant had located its “ yard ”■—a place for the deposit of cars and the making up of its freight trains. The female plaintiff knew this crossing very well, and had been driving the same horse over it three or four times a week for six months preceding the accident. As she approached the crossing the gates were down, and, after waiting some little time they were raised and she attempted to cross, when the gates were again lowered until an engine, which was then moving by, with several cars attached, had passed. She turned her horse and drove to the top of the hill and waited until they were again raised, and then started to drive across. According to her testimony, the engine was then standing about five or ten feet from the crossing—though other witnesses say that the distance was greater—and steam was escaping from it on both sides and at the top. At this her horse took fright and began to run as soon as she reached the track, and, notwithstanding her efforts to control him, he ran the wagon against a telegraph pole on the street, some distance beyond the crossing, throwing her out and causing the injuries for which this suit is brought.

The only question in the cause is whether these facts show that there was culpable negligence on the part of the defendant under such circumstances as to render it liable therefor. In solving this question it must be remembered that the defendant, equally with the plaintiff, had the right to the use of this street; that the crossing was at or near the “ yard,” or the place of deposit for its freight cars ; that the “shifting or drill” engine when engaged in shifting cars to make up a train, is liable to move at any moment from point to point as the exigencies of the service may require, and that it is absolutely necessary for its proper employment that there should always be sufficient steam to enable it to properly execute the work assigned it. The female plaintiff testifies that steam was being exhausted on both sides and at the top, but whether the amount escaping, or the noise made thereby was unusual or unnecessary she does not state. One of her witnesses (Mr. Smith) states that the steam was escaping from the top, “just as engines do when standing,” and he fixes the distance of the engine from the crossing at twenty feet. Mrs. Sapp, the only other witness for plaintiff, fixes the distance of the engine from the crossing at fifteen feet, and states that the steam was coming from the side, as she thought, but adds, “I didn’t pay much attention to that.”

Now, do these facts furnish any evidence of negligence on the part of the servants of the railroad company in the management of the engine, which was proper to be sub-submitted to the jury? The right to operate the defendant’s road, conferred by its charter, included the right to máke the noises incident to the working and movement of its engines, as in the escape of steam and the noise and rattling of cars, and until it is shown that the servants of the company operated their engine improperly and carelessly, making unusual and unnecessary noises, calculated to frighten horses passing over the highway, there is no culpable negligence. The defendant company was engaged in the prosecution of its lawful business, and it was bound only to exercise ordinary and reasonable care to avoid inflicting injury upon others. It is true there was some evidence that the engine was exhausting steam at both sides as well as at the top, and, as one witness stated “ was puffing steam out,” making a noise, but it is a matter of common knowledge that an engine cannot be moved without a sufficient head of steam, and that the business of the “ shifting ” engine is such that it must always have a full head of steam, in order that its movements may be promptly executed. To entitle the plaintiff to recover it was essential to show that the quantity of steam escaping from this engine, and the noise made thereby, was unusual and unnecessary. The proper inquiry is, not whether the accident might have been avoided if the company had anticipated its occurrence in the manner that it happened, but whether, under existing circumstances, there was any want of reasonable care and diligence in the management of the engine to guard against danger. We have been unable to find in the record any evidence of the want of reasonable care and diligence on the part of the defendant’s servants in the management of the engine which ought to have been submitted to the jury. Among the numerous autffi /ities sustaining this view of the case it is only necessary to refer to the following: Wilkinson's case, 30 Md. 224; Shipley's case, 31 Md. 70 ; Lewis' case, 28 Md. 588; Frech's case, 39 Md. 576; Burns' case, 54 Md. 113 ; Stebbing's case, 62 Md. 515 ; Savington's case, 71 Md. 599 ; Duvall’s case, 73 Md. 516; Pollock on Torts, 110-111 ; Burton's case, 4 Harr. (Del.) 252; Stinger's case, 78 Penn. 225 ; Lamb's case, 140 Mass. 79.

The cases cited by the appellee do not conflict with these views. In each of them the facts were disputed, and, wherever that occurs the jury is the proper tribunal to pass upon the question of negligence. But, as has been frequently held by this Court, “ where there is no proof of ne&figence on the Part of-the defendant, or where the proof is so slight and inconclusive in its nature as to be calculated to lead the jury into wild speculation, or irrational conjecture—as it is in this case—then the duty of the Court is to grant an instruction as to its legal insufficiency. Being after a careful examination of the record, unable to discover any evidence legally sufficient to establish negligence on the part of the defendant or its servants, we are of opinion that there was error in granting the first and second prayers of the plaintiff, and in rejecting the first and second prayers of the defendant, and the judgment must be reversed, with costs above and below.

(Decided June 17th, 1896).

Judgment reversed.