Baltimore & Ohio Railroad v. State

Alvey, C. J.,

delivered the opinion of the Court.

The decision of this case, to a considerable extent, -depends upon principles that were involved in the case of State, use of Ricketts, vs. Balto. & Ohio R. Co., (ante p. 494). In that case it was held, that, the place where the accident occurred not being a crossing, but being the exclusive right of way of the railroad company, and the party killed being wrongfully upon the track, *555 there was no duty incumbent upon the employes of the company to keep a look-out for the protection of trespassers upon the road; and therefore there could he no recovery, even though there was negligence in the running of the train, unless it was distinctly shown that the presence of the deceased upon the track became known to the employes on the train, in time, by the use of reasonable care' and effort, to avoid the collision. In other words, that the negligence of the deceased, in wrongfully walking upon the track, and failing to use his senses to discover the approach of the train, so far contributed directly to the production of the injury as to preclude the right oí recovery. In support of this proposition a number of decisions of Courts of high authority are cited in that case.

In this case,, the accident occurred on the 10th of October, 1887. within the limits of the City of Baltimore. It was in open day-light, the hour being a little after 5 o'clock p. m. The place where the accident happened was not upon an open public street, nor at any public or usual crossing of the railroad track; but it occurred while the deceased was walking on the track, facing an approaching train, and where the railroad company had the exclusive right of way for the operation of its trains. The place where the accident occurred was not far from the south-western limits of the city, and where the city has not been built up. The train that collided with the deceased, was leaving the city, hound for Washington, and" the deceased was going into the city ; thus confronting the approach of the train. All the track of the defendant's road west of the bridge at the intersection of Ostend street, as designated on the plat, is the private right of way of the defendant, and it is stated by the witnesses that it was about sixty or .seventy feet west of the bridge that the accident happened. It appears that there was a *556 small footpath, much used hy people in that neighborhood, along the north side of the tracks, and between the road bed of the defendant and the tracks of another railroad company; but.it is not a way in which the public had any rights, and it was only used by the implied license of the railroad company.

There is really no material conflict among the witnesses as to the facts relating to the accident. Some of them, owing to their position, saw more of the occurrence than others, and there is some slight variation in the narrative given by them; but there is no real conflict as to the material facts of the case. It is shown that the deceased was seen just before the accident walking in the foot-path between the tracks-of the,defendant and those of the Annapolis Short Line Company, and at that time the train for Washington was approaching at quite a fast rate of speed. From the time the train got within about a thousand feet of the place where the accident occurred, it continued in full view, in its approach, to any one a't or about the point of collision; and when this train was within a short distance, perhaps less than a hundred and fifty feet of the deceased, he stepped upon and crossed the north track of the defendant's road, diagonally, to the south side thereof, and pxxrsued his way on the ends of the cross-ties until he was struck and killed bj the engine. All other persons at or about the scene of the accident heard and saw the approach of the train, and paid heed to it; the deceased being the only person who seemed not to be mindful of his danger, though immediately facing the rapidly approaching train. A more daring experiment, or grosser act of negligence, on the part of the deceased, could scarcely be imagined.

It is true, the train was running at a much higher rate of speed than that allowed by the ordinance of the city, and in this, it is conceded, there was negligence *557 on the part of the defendant. But this disregard of the ordinance, and consequent act of negligence, on the part of the defendant, did not excuse or in any way justify the glaring act of negligence on the part of the deceased. That has been ruled in many cases, and is now the settled law. Railroad Co. vs. Houston, 95 U. S., 702 ; Baito. & Ohio R. R. Co. vs. Mali, 66 Md., 53, 60 . The present is not unlike in principle the case put by Lord Chancellor Cairns, in the course of his opinion in the case of Railroad Co. vs. Slattery, 3 App. Cas. Ho. Lords, 1166, referred to in Bacon’s Case, 58 Md., 485 , that if a train, which ought to give signal by whistle when approaching a road crossing, or passing a station, were to pass without giving such signal, and a party were, in broad daylight, and without anything either in the structure of the line or otherwise, to obstruct his view, to cross in front of the advancing train and to be killed, the Judge ought to instruct the jury that it was the folly and recklessness of the party himself, and not the carelessness of the company, which caused his death. In such case, says the Chanceilor, “ the jury should not be allowed to connect the carelessness in not whistling, with the accident to the man, who rushed, with his eyes open, on his own destruction.” So here, the train advanced in open view, but yet the deceased persisted in his course on the track, until he confronted the engine by actual collision.

The case seems to have been tried upon the assumption, and so the argument for the plaintiff seemed to assume here, that it was the duty of the railroad company to keep a look-out for trespassers on its private right of way, and upon discovering the party upon the track who failed to leave it within a reasonable distance before he was reached, the train should have been brought to a stop. Doubtless there are many-cases that could be suggested, where it would be the duty of *558 those in control of the train to stop it, if possible, in time to save a party found upon the track. But it is quite erroneous to assume that, in a case like the present, it was the duty of the train-men, upon seeing the party upon the track, to stop the train. From the time the deceased was discovered in his perilous situation, it was certainly the duty of those in charge of the train, by the use of reasonable effort, to avoid, if possible, a collision with him. This, in most cases, is done by the use. of signals,—such as sounding the whistle or ringing-the bell. But where a party is discovered on the track, in the exercise of full power of locomotion,, and no impediment to his escape, those'on the train may well act upon', the assumption that he will use his senses for his protection, and get out of the way of danger before he is struck. If all railroad companies were bound to stop their trains upon discovering trespassers walking ahead upon their tracks, because such intruders might, by possibility, fail to get off the track in time to avoid being struck, it is difficult to say what, would become of the many fast express trains that are moving over the country. Time-tables made to regulate the exact movement of trains would be subordinate-to the convenience of pedestrians who might think proper to use the railroad tracks rather than other-more'lawful ways. But no such proposition has ever-been maintained, by any well considered case of which we are aware.

The second prayer of the defendant, the correctness of which was conceded by the plaintiff, and was granted by the Court, asserts that the track where the accident occurred was the exclusive private right of way of the defendant, and that there was no evidence to show that the deceased had any right to be on such track. The fourth and fifth prayers of the defendant were also granted,, in connection with the plaintiffs second prayer; and *559 with the principles announced in those three instructions, which are plainly correct, we are of opinion that there was no sufficient ground for referring the case to the jury, for any conclusion in regard to the evidence. As we have said, there was no substantial conflict in the evidence, as to material facts; and assuming the truth of all the evidence on the part of the plaintiff, there was no ground whatever shown for recovery. All verdicts of juries must have rational support from the evidence in the cause ; and where it is manifest to the Court upon the plaintiff’s own-showing, and the uncontradicted evidence in the cause, that there is no rational ground up.on which a verdict can be based for the plaintiff, it becomes the duty of the Court to direct a verdict for the defendant. And therefore, upon the evidence in this case, we think the Court below ought to have granted the defendant’s first prayer, which asked that the jury be directed to render a verdict for the defendant. Upon the instructions given, we may say here as was said by the Supreme Court, in Railroad Co. vs. Houston, 95 U. S., 702, where the testimony as to the contributory negligence was less gross and flagrant than in this case, that i;not even a plausible pretext for the verdict can be suggested, unless the Coiirt wander from the evidence into the regions of conjecture and speculation. Under these circumstances, the Court would not have erred had it instructed the jury, as requested, to render a verdict for the defendant.” Seeing that there is an entire.absence of any ground for the plaintiff’s recovery, we shall reverse the judgment without directing a new trial.

(Decided 14th December, 1888.)

Judgment reversed, but without the aivard of new trial.