69 Md. 494 | Md. | 1888
delivered the opinion of the Court.
The single question in this ease is, whether, upon the evidence, there was a sufficient case made to require the Court to refer it to the jury for their conclusion. No testimony was given except that upon the part of the plaintiff; and, upon that testimony, the Court was asked to instruct the jury, that the, negligence of the deceased, directly contributed to his death, and the verdict should therefore he for the defendant. This instruction was given, and in giving it we think the Court committed no error.
The accident happened on the 20th of January, 1887, on the Metropolitan Branch of the Baltimore and Ohio
The fact that the engine and tender were running backward, on a track through the country, where people were not expected, and had no right, to be on the track of the road, cannot be regarded of itself as an act of negligence. The necessities of railroad operation may require such mode of moving trains, under special circumstances; and we all know it is constantly done upon all the roads of the country. Sullivan vs. Penn. R. Co., (Pa.) 1 Atl. Rep., 177; 2 Shear. & Redf. on Neg., sec. 471. But even conceding such movement of the train to be negligent, the question is, did it relieve the deceased of the consequences of his negligence in being unlawfully upon the appellee’s railroad.track, and his failure to use his senses to guard him against danger?
It is undisputed that the right of way, where the accident occurred, was the exclusive property of-the railroad company, and, consequently, no person, without authority, had a right to be on the track, or to use it as a footway. The deceased, therefore, was a trespasser on the track, and was only entitled to such protection as a trespasser could rightfully claim. Being on the track wrongfully, the servants of the railroad company were under no obligation of duty to keep a look-out for his protection; but having voluntarily put himself in a place of danger and of peril to his life, he was bound to use his senses as the means of avoiding injury. Before a person attempts to cross a railroad track, he is required to look and listen for approaching trains, and his failure to observe this pre
It is true, the fact that the deceased was wrongfully on the track at the time of the accident did not re
Judgment affirmed.