67 Md. 339 | Md. | 1887
Lead Opinion
delivered the opinion of the Court.
At the close of the testimony the defendant company asked the Court to 'instruct the jury that there was no evidence legally sufficient to show that the plaintiff was injured by its negligence or that of its agents, and he cannot therefore recover.
There can be no serious controversy as to the legal principles applicable to a case like this. ' The onus of proving that the injury was caused by the negligence of the company is on the plaintiff, and if there be no evidence legally sufficient for that purpose the action must fail. It has been so often decided by the Appellate Court of this State that the legal sufficiency of evidence is a question of law for the Court thait it is useless to cite
The crossing where the accident occurred was undoubtedly a private farm crossing and not a public highway. The farm was a large one lying between the county road and the river, and, as usual, there was a private lane or road from the county road to the farm house for the convenience of the owners of the property. When the railroad was originally located and constructed, it passed between the barn and the house, across this private lane, and the company placed planks between the rails on their tracks for the accommodation of those using the crossing, and presumably, also, for the protection of their rails. Gates were erected across this lane on both sides of the track which were usually kept closed. There was also a gate at the county road, also closed, hut in late years it seems to have been left open. Formerly, and for a short period, there was a fishery on the river shore, and the way to it was down this lane which was generally used during the fishing season by persons going there. But this was more than fifteen years ago, and the farmer who then and now lives in the farmhouse, says, that after 1871 “it was used only by me, and persons coming to see me.” In short there is no proof that (other than for this brief
The McCullough Iron Company bought the whole farm in February, 1884, and in the following spring put up works for burning charcoal on that part of it which lies south of the railroad. They used this lane in hauling materials from the county road for the construction of these works. They commenced burning charcoal in September, 1884, and hauled it through this lane to the county road, and thence to their furnaces at the village of North East. This, of course, occasioned an increased use of the lane and crossing, but it was still a private lane and a private crossing. The proof is clear and uncontradicted, that since the purchase of the farm by this company, and the construction of these works, the lane “was used only by people going to their works and to their farm buildings.” One of the witnesses says that after the works were put up and there was so much hauling, he told “one of the officers of the iron company that the railroad, company had never blown any whistle at this crossing, and that he ought to-have the railroad company put a whistling post there, or some one would be killed there some day.” But no request for a whistling post was ever made, nor is there any proof that the extent of the increase of the use of the crossing by reason of this hauling, was ever, prior to this accident, brought to the knowledge of any of the general officers of the company or to any of its agents or employes engaged in the running of its passenger trains.
The fact that no whistle had ever been sounded for this crossing is conceded. Indeed, the plaintiff himself says he knew this when he attempted to cross the tracks, and that he also knew that the train was then due. The engine-man in charge of the locomotive, and who had been running over it daily for more than twenty years, says he always supposed it was a farmer's private crossing; that he-
These are what we find to he the undisputed facts. It is therefore the case of a private crossingin the opencountry, guarded by gates on either side, where there was no station for passengers or freight, nor any side track, and where no trains ever stopped ; where for more than twenty years no whistle had ever been sounded, nor whistling post put up, nor any request therefor made by the owners of the property entitled to use the crossing; and where the line of the railroad on either side was nearly straight. In many of the States, as well as in this, statutes have been passed requiring railroad companies to have flagmen at grade crossings or to whistle or give other signals at such
Nor have we found or been referred to any case, either in this country or in England, in which it has been decided that th§ failure to whistle at a crossing like this, is evidence to go to the jury of culpable negligence on the part of a railway company. Counsel for the appellee has cited a large number of cases but they all differ widely in their circumstances from this. One case specially relied on (and it illustrates all the others) is that of Barry vs. N. Y. C. & H. R. R. R. Co., 92 N. Y., 289. In that case, a boy ten years of age was killed while crossing the defendant’s track in the City of Troy, at a place where the public had been in the habit of crossing for more than thirty years, and where several hundred persons crossed daily with the knowledge and acquiescence of the company. The train which inflicted the injury was backing up without ringing a bell or giving any other signal of its approach, in charge of a brakeman who was standing on a platform between two oars, where he could not see persons on the track or have notice to apply the brakes in case of danger; and there can, we think, be no doubt as to the correctness of the Court’s decision, that the evidence in that case justified the submission of the question of the defendant’s negligence to the jury. A case decided by the House of Lords, Dublin, Wicklow & Wexford Railway Co. vs. Slattery, L. Rep., 3 Appeal Cases, 1155, was also relied on. There the accident occurred at night and at a way station on the road. The party had crossed the tracks to purchase his ticket, and on his'way back was caught and killed by an express train. It was a rule of the railway that the express trains should always sound a whistle on approaching this station. The defendant’s witnesses swore that the whistle was sounded,
These are the strongest cases cited by counsel, and the difference between them and the case at bar is too obvious to need comment. More like it, but not more strong for the defendant company, is our own case of Northern Central Railway Co. vs. State, use of Burns, 54 Md., 115. The proof in that case was that Mrs. Burns was killed while crossing the tracks near Woodberry, at a place where many pedestrians going to and from Baltimore were accustomed to cross. On one side of the tracks was the gate of a public park which these pedestrians used ; and on the other a foot bridge over the stream to the Woodberry mills which they also used. There was, however, no public roadway there, nor any planks convenient for crossing, but there was a path on each side of the railroad. She was struck by a train going to Baltimore, and the road approached the place on a curve. The ground upon which negligence was imputed to the company was that no bell was rung or whistle sounded when the train approached the place of the accident. The proof on this subject was that it was not customary to give any such signals at that place, unless some one was seen on, or approaching the railway. The Court described the place as being in the “open country,” and held that “there was no obligation on the part of the company to give the signals spoken of,, and negligence cannot be imputed to the defendant if they were not given,” and that it was error to submit the case to the jury upon the undisputed facts disclosed by the proof. They said that the plaintiff had failed to offer any evidence whatever of negligence on the part of defendant’s agents in charge of the train, whereby the accident was caused, and reversed the judgment.
Upon a careful consideration of the facts proved, (and about which there is no dispute) we have reached the same conclusion in this case. In our opinion, the defendant’s first prayer should have been granted. This is conclusive of the case, and it becomes unnecessary to consider the defence of contributory negligence on the part of the plaintiff, or any other question argued at bar.
Judgment reversed.
Dissenting Opinion
filed the following dissenting opinion:
I regret that I am not able to agree with the majority of the Court in the opinion filed by them. In my opinion, the evidence was of a character to require the case to be submitted to the jury, and that there was no error in so submitting it to them. That the crossing was one well established, and much used by many persons, were facts shown by several witnesses, and it was and is of a nature to require caution on the part of the defendants to avoid the occurrence of accidents. Though the crossing is not of' a public highway, in the legal sense of the term, yet it was provided for, and has been regularly repaired and maintained by the defendant as an ordinary crossing of its road ; and since the accident complained of they have recognized the propriety, indeed, the necessity, of giving proper signals of the approach of trains to this crossing, by erecting a whistle-post at that point. There is no pretence that any signal whatever was given by those in charge of the train on the occasion of the accident, though the proof shows that the train was running at a very high “and dangerous rate of speed, and that the power of vision was greatly obstructed in that immediate locality by the smoke from the neighboring charbon works. I think there was evidence of negligence on the part of the defendants, and that the jury were the proper tribunal to consider the
In the view taken by the majority of the Court, all question in regard to alleged contributory negligence on the part of the plaintiff, is rendered wholly immaterial in the disposition of the case. I deem it unnecessary, therefore, to make any referenee to the evidence upon that subject.
(Piled 21st June, 1887.)