| Md. | Nov 23, 1899
This action was brought in Wicomico County by the plaintiff against the defendant company to recover for personal injuries received by himself, and for damages to his horse and carriage occasioned, as alleged, by the negligence of the defendant in causing his horse to take fright and run away while he was in the act of driving across the defendant's track near its station in the city of Salisbury.
The wrongful act or negligence charged, as the ground of the action, is stated in the narr. as follows: "While the defendant's engine was standing still and within about fifteen feet of plaintiff's said horse, the defendant's servant then andthere in charge and control of said engine voluntarily, negligently, carelessly and unnecessarily, suddenly and without notice or warning to the plaintiff, caused the discharge and escape of steam from the cylinders of said engine, whereupon and whereby the plaintiff's said horse became and was frightened and ran away," c. The case was removed to and tried in Worcester County, with the aid of a jury; and at its close was withdrawn from the jury upon an instruction from the Court, given at the request of the defendant, that there was no legally sufficient evidence upon *56 which the plaintiff could recover. The verdict and judgment being in consequence against the plaintiff, he has appealed, and brought up the single question of the correctness of this prayer.
It appears that the engine in question was lawfully on its track, engaged in shifting cars near its station, and was standing still, about fifteen feet from the public street-crossing, at the time plaintiff attempted to cross. Under these circumstances, it became the duty of defendant's servants in charge of said engine to exercise reasonable care and prudence to avoid injury to the plaintiff, as the plaintiff, equally with the defendant, had the right to the use of the street or crossing. It was, nevertheless, the right of the defendant to make such noise as was usual and incidental to the movement and operation of its engine at the time and place and in the work engaged. The above statement of the law is well settled.Duvall's case,
As the question raised brings before us all the testimony offered by the plaintiff, we will now proceed to examine it. The plaintiff, in the first instance, offered himself as a witness and testified as follows: "That he drove to Salisbury and came to where defendant's railroad track crossed East Church street, near its passenger station; that as he approached the crossing, an engine of the defendant was backing over the road; that after the engine had crossed the road it came to a stop about fifteen feet south of the crossing, and he asked a man, who was standing at the crossing, if it was safe to cross, and the man beckoned to him to come across, and about that time or before, the engineer had jumped from the cab of the engine and went to a store near where the plaintiff was sitting in his carriage and heard him ask the question if he could cross and told him he could do so; he started to drive across and his horse took no notice of the escaping steam from the top of the engine, but that just as he got in front of the engine somebody in the engine opened the cylinder cocks, which were *57 situated on the lower side of the engine, and the steam escaped and hot water, which frightened the horse, and the horse ran away." This is the whole of plaintiff's testimony as given by himself. The next witness was John A. Parker, who testified "that he heard the plaintiff ask if it was safe to cross, and saw the man beckon him to come over; that he saw plaintiff start over and his horse did not seem to be scared until he got in front of the engine and the cylinder cocks were turned on." George R. Bennett, the third witness, saw plaintiff "start over and heard him ask somebody if he could cross, and that when he started the engine was blowing off steam at the top valve and continued doing so while the plaintiff crossed over, and that the horse did not seem to be scared at all until he got opposite the engine, when the cylinder cocks were opened." The last witness to the accident was John Whaley, who testified that "the engine was standing still a little south of the street-crossing, and that when the plaintiff got on the crossing they opened the side valves and he saw something go up like that, making a hissing sound and scared the horse." The only other witness for the plaintiff was Frederick Ridings, who was put up as an expert on engines in general, and testified that for thirty-five or thirty-seven years he had "been running engines and was familiar with the construction of locomotives and engines, and that the cylinder cocks of an engine are put there to let the water that condenses in the cylinder out in the cylinder cocks; that the cylinder cocks do not work automatically, but are controlled from the cab on the engine; that there is no particular time when it is necessary to open the cylinder cocks unless the cylinder gets too much water in it and you want to empty it; that when the engine is standing still there is no necessity at all for opening it, but when the engine is shifting or moving about, there is sometimes necessity for opening the cylinder cocks to let the water out."
The foregoing is the testimony in full as offered by the plaintiff. The defendant offered and proved by the engineer, *58 in corroboration of plaintiff's testimony, that he was not inthe cab of the engine at the time the accident occurred, and therefore could not have turned on the cylinder cocks. The fireman testified, also without contradiction, that he did not open the cylinder cocks. As seen from the testimony set out, the plaintiff utterly failed to show that the cylinder cocks were opened by any of the men in control of the engine, or that they or any of them were in the cab at all at the time the accident happened. There is no evidence that any one was in the cab, except from what might be vaguely inferred. Nor has the plaintiff shown that the noise made by the engine at the time was of an extraordinary or even unusual character and not within its charter privileges. Among many others in this State, the case ofB. O.R. Co. v. State, use of Savington,
We do not think that the plaintiff has by his proof met the requirements of law as above announced, and consequently he must fail in his action as properly determined by the Court below. We think besides that the recent case of Burkhart, in 83 Md. 516" court="Md." date_filed="1896-06-17" href="https://app.midpage.ai/document/philadelphia-wilmington--baltimore-railroad-v-burkhardt-7899718?utm_source=webapp" opinion_id="7899718">83 Md., 516, as before cited, is conclusive of this. But this appeal must be disposed of on another ground, and must be dismissed as having not been taken within two months from the rendition of the judgment. The judgment was rendered on the 23rd day of May, 1899, and the order for appeal filed on the 26th of July, 1899. It follows that the appeal must be dismissed on appellee's motion, as the same was not taken within two months from the date of the judgment, as required by section 6 of Article 5 of the Code (rules 2 and 27). Peabody Heights Co. v. Sadtler,
Appeal dismissed with costs.
(Decided November 23rd, 1899).