Baltimore & Ohio Railroad v. State ex rel. Chambers

Negligence — Passenger Crossing Track at Railroad Station — Running Train Through Station— Who are Passengers — Res Gestae — Rules of the Company — Intoxication of Deceased — Evidence—Right of Wife Separated from Husband to Recover Damages. A judgment will not be reversed on account of the refusal of the trial Court to strike out testimony improperly admitted, when the same facts have been proved by competent evidence. Declarations of a party, made just before he boarded the defendant’s train, and the occurrence of the accident by which he was killed, touching his purpose in going on the train, are admissible as part of the res gestae. In order to become a passenger and entitled to protection as such at the hands of the carrier, it is not necessary that a person shall have paid his fare or entered a train, but he is such as soon as he comes within the control of the carrier at the station, through the usual , approaches, with intent to become a passenger by paying fare, either before or after entering the train. Intoxication on the part of the injured person is not proof of negligence per se. The fact that a man killed by the negligence of the defendant had been separated from his family for twelve years preceding his death and had contributed nothing to the support of the plaintiffs, does not prevent a recovery by them; the marital relation and the rights and duties growing thereout continued to exist. There were two stations of the defendant company in the town of B., known as the West and East station. The deceased, after declaring to friends his intention to go to Washington, boarded, at midday, a local train of the defendant, by jumping on the platform of a car next to the tender of the engine, at the West station and was carried half a mile to the East station, whence a train started for Washington. Upon arriving there he went on a platform across the tracks towards the ticket office, and while so attempting to cross, a passenger train passing through the station at a rate of speed variously estimated as from 17 to 35 miles an hour, struck and killed the deceased. Other passengers were crossing the track at the same time, and the deceased did not look out for approaching trains before attempting to cross. There was conflict of evidence as to whether a bell was rung and whistle blown by the train that struck the deceased. There was testimony showing that the deceased was somewhat under the influence ■of liquor at the time he boarded thé train at the West station. In an .action by the widow and infant child to recover damages, Held, 1st. That it was immaterial how the deceased got from the West station to the East station, if when at the latter station he was rightfulfy on defendant’s premises and traversed the way usually taken by passengers to the ticket office. 2nd. That there was evidence from which the jury could find that when he crossed the tracks he was in quest of a ticket to Washington, and under the circumstances of the case he was not bound to stop, look and listen before crossing. 3rd. That an instruction to the jury that if the deceased was slightly intoxicated when he got aboard the first train, but was not drunk at the time of the accident, then the jury cannot infer that he was guilty of want of ordinary care is correct. 4th. That it was negligence on the part of the defendant to run a train through the station at a high rate of speed while another train was standing there discharging passengers, under the circumstances of this case. 5th. That a rule of the defendant company to the effect that “when one passenger train is standing at a station receiving or discharging passengers on double track, no other train will attempt to run past until the passenger train at the station has moved on, or signal given by the conductor of the standing train, ’ ’ is admissible in evidence. 6th. That the time tables of the defendant company were also admissible in evidence. 7th. That testimony as to whether the deceased saved anything out of his earnings is not admissible.

Appeal from the Circuit Court for Frederick County. This action was brought in the name of the State to recover damages for the killing of John W. Chambers at the East Brunswick station of defendant’s road, on April 21, 1894, through the alleged negligence of defendant’s servants' The evidence showed that Chambers, being near the West Brunswick station, and desiring to go to Washington, enquired when the next train would leave by which he could go. At that moment a train, which connected for Washington, was about leaving the West station, and would pass by where Chambers stood. As it approached he got aboard the first platform of the baggage car and rode thereon to the East station, a distance of half a mile. When the train stopped he got off on a long platform between the tracks, and started across the north track by a connecting platform over that track, going toward the ticket office. Other passengers were crossing over at the same time; also several of defendant’s employees. There is a double track in front of this station used by passenger trains, and it was as Chambers was about to cross the intervening track between the station and the train from which he had alighted — No. 16— that train No. 5, an express train, running westerly in the opposite direction, came by and struck and killed him. There was conflict of testimony as to the speed of the express train at the time — plaintiffs’ witnesses putting it at from 30 to 35 miles an hour, and defendant’s witnesses at from 15 to 17 miles an hour. There was also some conflict as to the ringing of the bell and blowing of the whistle of No. 5 ; some of the plaintiffs’ witnesses testify that they did not hear either, and that their attention was first called to the approaching train by some one exclaiming, “ Here comes No. 5 !” while the testimony of the appellant’s witnesses is very positive that the whistle was blown and the bell rung. At the trial the plaintiff offered the following prayers: Plaintiffs' 1st Prayer. — If the jury find that John W. Chambers on &c., got aboard the train called accommodation train, known as No. 16, over defendant’s road, in the manner testified to by William C. Compton, and rode thereon to the East Brunswick station, a distance of about one-half mile, on the platform of the baggage car, if they shall so find, and that said train, then on the south track of defendant’s road, stopped at said station for the purpose of receiving and discharging passengers, and that when said train reached said East Brunswick station, John W. Chambers left his position on the accommodation train to obtain a ticket to Washington by said train, and that he got off on the side next to the station, upon a long plátform between the north and south tracks of said road, as shown in the photograph in evidence, and that he walked towards the ticket office at said station, to reach which it was necessary for him to cross the north track of defendant’s road, and that in so walking on the platform and in attempting to cross said north track to get to said ticket office, if the jury so find, he was killed by the locomotive of an express train of defendant while operated by its agents over its roads, and that the equitable plaintiffs are related to him in the manner set forth in the pleadings herein, and that said killing resulted directly from the want of the exercise of ordinary care and prudence on the part of the agents of defendant, and not from the want of ordinary care and prudence of deceased, directly contributing to the accident, then the plaintiffs are entitled to a verdict. (Granted.) Plaintiffs' ffh Prayer. — If the jury find from the evidence that John W. Chambers, on or about April 21st, 1894, got aboard the train called the accommodation train, known as No. 16, over defendant’s road, in the manner testified to by the witness, William C. Comption, and rode therein to the East Brunswick station, a distance of about one-half mile, on the platform of the baggage car, if the jury shall so find, and that said train then on the south track’ of defendant’s road stopped at said station for the purpose of receiving and discharging passengers at that station, and when said train reached said East Brunswick station, John W. Chambers left his position on the accommodation train to obtain a ticket to Washington by said train, and that he got off on the side next to the station on a long platform between the north and south tracks of said road, as shown in the photograph in evidence, and that he walked toward the ticket office at said station, to reach which it was necessary for him to cross the north track of defendant’s road, and that in so attempting to cross over said north track to get to said ticket office he was killed by the locomotive of an express train of defendant, while operated by its agents over its road, and that the equitable plaintiffs are related to him in the manner set forth in the pleadings herein, that then the verdict of the jury must be for the plaintiffs, unless the jury shall find that said John W. Chambers actually saw said train No. 5 approaching, or heard the cries warning him of its approach, and understood the same in sufficient time to avoid being struck by the engine of said express train, if the jury shall find that he was so struck, and in this connection the jury are to consider the general and known disposition of men to take care of themselves and to keep out of the way of difficulty and danger. (Granted.) Plaintiffs' $th Prayer. — That if the jury shall find from the evidence that John W. Chambers had used intoxicating drink on the morning of April 21st, 1894, as testified to by the witness, William C. Compton, and that he was slightly intoxicated when he got aboard of train No. 16, as testified to by defendant’s witness, L. V. Dean, but if they shall further find that deceased was not drunk when he was about to cross the defendant’s track at East Brunswick, as mentioned in the 1st prayer of plaintiffs, such use of intoxicating drink and such slight intoxication is not evidence from which a juiy may infer the want of ordinary care and prudence on his part. (Granted.) Plaintiffs' 6th Prayer. — That if the jury shall find for the plaintiffs, then, in assessing the damages, they are to estimate the reasonable probability of the life of the deceased, Chambers, and give his widow and child, Irving C. Chambers,’of the equitable plaintiffs, such pecuniary damages, not only for past losses, but for such prospective damages as the jury may find that they have suffered or will suffer as a direct consequence of the death of said Chambers. (Granted.) Plaintiffs' "jth Prayer. — That if the jury shall believe from all the evidence that the defendant company erected and maintained at East Brunswick the platform shown in the photograph offered in evidence and the same, and walking across the north track of defendant were the only passageways provided for persons who had to go to and from said station and ticket office and said large platform between the tracks; and shall further find that defendant was in the habit of stopping its eastbound passenger accommodation train on its south track at said platform between the tracks, to allow passengers to embark and disembark at East Brunswick, by passing over said north track and said connecting small platform ; and shall further find that deceased, Chambers, arrived at said platform, between the tracks, on train No. 16 of defendant; that said train stopped; that deceased thereupon got upon said platform between the tracks and started to go across said north track to defendant’s ticket office to buy a ticket to Washington City by said train ; that just as deceased stepped on said north track he was struck by an engine of defendant, drawing its train No. 5, over said north track, and killed while said train No. 16 was still standing at said station, embarking and disembarking passengers ; if the jury shall so find, and shall believe that the equitable plaintiffs, Mary J. Chambers and Irving C. Chambers, were related to decedent, as mentioned in evidence, that then the verdict of the jury must be for the plaintiffs, unless the jury shall find that decedent actually saw said train No. 5 approaching, or heard cries warning him of its approach and understood the same in sufficient time to avoid being struck by the engine of No. 5 ; if the jury shall find he was so struck, and in this connection the jury are at liberty to consider the general and known disposition of men to take care of themselves and to keep out of the way of difficulty and danger. (Granted.) Plaintiffs' 8th Prayer. — That if the jury shall believe from the evidence that the defendant company erected and maintained, at East Brunswick station, the platform shown in photograph offered in evidence, and that the same and walking across the north track of defendant were the only passage ways provided for persons who had to go to and from said station house and ticket office platform and said largeplatform between the tracks on business with said defendant company, and shall further find that defendant was in the habit of stopping its eastbound accommodation passenger trains at said platform, between the tracks, to allow passengers to embark and disembark by passing over said north track and said connecting platform, that then said deceased, Chambei's, had a right to consider that any person needing to pass to and from said station and ticket office platform and said platform between the tracks upon business with defendant were invited to use said platforms and passage ways, and that said passage ways and platforms would be kept free from danger of trains passing over its north track while a passenger train was standing on its south track embarking and discharging passengers. (Granted.) Plaintiffs’ gth Prayer. — That under all the circumstances mentioned in evidence, it was gross negligence of the defendant to run its train No. 5 over the north track of its road while its accommodation train No. 16 was standing at East Brunswick station embarking and discharging passengers ; if the jury shall find that train No. 5 was so run, and that negligence is not properly imputable to the deceased for failing to look out for the danger of said train No. 5 passing at said point, since deceased had the right to consider that said train could not be so run while said train No. 16 was standing at said platform receiving and discharging passengers. (Granted.) Plaintiffs' 10th Prayer. — That if the jury shall find the facts set out in the 1st prayer that it is entirely immaterial whether decedent got upon defendant’s train No. 16 while in motion, or where he placed himself on same, or whether he was or not known by defendant’s employees in charge of No. 16 to be on said train at and prior to its arrival at East Brunswick. (Granted.) And the defendant, by its counsel, offered the following prayers: Defendant's ist Prayer. — That from the undisputed facts in this case, the said John W. Chambers, at the time that he was struck and injured by the defendant’s train, and from which injury he subsequently died, was not a passenger of the defendant company; that no contractual relation at said time existed between the said John W. Chambers and the defendant; and that the said John W. Chambers, not being a passenger, as aforesaid, was not entitled to that degree of care on the part of the defendant imposed by law upon it as a carrier of passengers; and if the jury shall find that the said Chambers started to cross the north track of defendant’s road without looking down the track in an easterly direction, from which direction train No. 5 was approaching; and.shall further believe from the evidence, that the view of the track in said easterly direction was unobstructed for about half a mile (as testified to by the witnesses;) and that if the said Chambers had looked he could have seen said train approaching in time to avoid injury; and that in walking on said north track or in attempting to cross the same in front of said approaching train, the said Chambers was struck by the engine of said train and severely injured, and from which injury he shortly afterwards died, then that the said Chambers was guilty of contributory negligence, which negligence was the direct cause of the injury complained of, and the plaintiffs are not entitled to recover damages in this action, and the verdict of the juiy must be for the defendant; unless the jury shall further find, that the defendant, after discovering the said Chambers in a-dangerous position, could have, by the use of ordinary care and diligence, avoided said accident, of which there is no evidence. (Rejected.) Defendant's 2nd Prayer. — That if the jury shall believe from the evidence that the said John W. Chambers got upon the defendant’s train, No. 16, between the tender of the engine and the baggage car of said train, at a point east of the defendant’s old station at Brunswick, while said train was in motion, without procuring a ticket, and without the knowledge or consent of the agents of the defendant in charge of said train, and in this position rode to the defendant’s station at East Brunswick, and that upon the arrival there of said train No. 16, or shortly afterwards, the said Chambers got down off the platform of the car upon which he had been riding (next to the tender of the engine), upon the station platform at East Brunswick, and started across the north track of the defendant’s road at that point without looking down the track in an easterly direction, from which direction the express train No. 5 was approaching; and shall further believe from the evidence, that the view in said easterly direction was unobstructed for the distance of about half a mile (as testified to by the witnesses;) and that if the said Chambers had looked he could have seen said train approaching in time to avoid injury; and that in attempting to cross the north track in front of said approaching train, the said John W. Chambers was struck by said train and severely injured, and from which injury he shortly afterwards died, then that the said Chambers was guilty ot contributory negligence, which negligence was the direct cause of the injury complained of, and the plaintiffs are not entitled to recover damages in this action, and the verdict of the jury must be for the defendant, unless the jury shall further find that the defendant, after discovering the said Chambers in a dangerous position, could have, by the use of ordinary care and diligence, avoided said accident, of which there is no evidence. (Rejected.) Defendant’s 6th Prayer. — That if from the evidence the jury believe that the deceased had been,separated from his family for a period of about twelve years immediately preceding his death, and that he had contributed nothing to the support of his wife or infant child during that period (as testified to by the witnesses), that then there is no evidence in this cause legally sufficient to entitle said equitable plaintiffs to more than nominal damages. (Rejected.) Defendant’s 8th Prayer. — That the jury cannot impute negligence to the defendant company, from the fact that the passenger train No. 16, the train going East, and upon which the said Chambers had been riding, was behind the schedule time, and late in arriving at the East Brunswick station, if the jury shall so find. (Granted.) Defendant's pth Prayer. — That if from the evidence the jury believe that the said decedent, John W. Chambers, had been separated from his wife for a period of about twelve years, immediately preceding his death, and that during that time he had contributed nothing to her support, as testified to by the witnesses, that then there is no evidence in this cause legally sufficient to entitle the equitable plaintiff, Mary J. Chambers, wife of said decedent, to more than nominal damages. (Rejected.) Defendant's ioth Prayer. — The defendant, by its counsel, prays the Court, under all the pleadings and evidence, to instruct the jury that there is no sufficient legal evidence in this case from which the jury can find for the equitable plaintiffs in this cause, and the verdict of the jury must be for the defendant. (Rejected.) Defendant's 12th Prayer. — That every person of ordinary intelligence is bound to know that a railroad track is a place of more than ordinary danger, and it becomes his legal duty, when being on or about a railroad track, to use corresponding care and caution to avoid injury, and if the jury believe from all the evidence in this case that the plaintiffs’ decedent, Jno. W. Chambers, at the time he went to or upon the defendant’s track and received the injury which caused his death, did not look or listen for approaching trains, and that if he had so looked or listened he could have seen or heard the approaching train which struck and injured him, and avoided the same, that then said Chambers was guilty of negligence in not so looking or listening for approaching trains, and directly contributed to the injury which caused his death, and the equitable plaintiffs are not entitled to recover in this case, unless the jury shall further find from the evidence that the defendant’s agents, after said Chambers got in a place of danger, could have prevented such injury and did not do so. (Rejected.) The Court below (Lynch J.),granted the plaintiffs’ ist,4th, 5th, 6th, 7th, 8th, 9th and 10th prayers, and rejected the defendant’s 1st, 2nd, 6th, 9th, 10th and 12th prayers. The defendant excepted to the action of the Court, and especially to the granting of the 1st, 3rd, 4th, 5th, and 7th prayers of the plaintiffs, upon the ground of the insufficiency of the evidence to sustain them. The juiy returned a verdict for the plaintiffs, assessing their damages at $2,500, and from the judgment thereon the defendant appealed.