Hughes v. Baltimore & Ohio R. R.

Opinion by Me. Justice Fell, The plaintiff was a freight conductor on the defendant’s road, and was injured in a collision alleged to have been caused by the negligence of a flagman who was habitually careless, and of whose incompetence the defendant had notice. The flagman whose conduct was complained of was one of the crew of the plaintiff’s train, under his charge and subject to his orders, and notice of his incompetence had been given to the defendant but a short time before the accident. The plaintiff’s road to a verdict was therefore a very narrow one, and its lines were clearly defined in a charge which fully and accurately stated the law, not in mere abstract propositions, but with reference to the testimony so that it could be understood by the jury. The only question now to be considered is whether the case should have been taken from the jury, and we are of opinion that the learned judge was right in submitting it with the instructions which were given. There was testimony from which the jury might have found that the plaintiff was injured without fault on his part, and wholly because of the neglect of the flagman; that the flagman was habitually careless, and his unfitness for the position was known to the defendant long enough before the accident to enable it to procure some one else to take his place. The jury [181] may not have reached the proper conclusion, but the case could not have been withdrawn from them, and if the verdict was wrong on the weight of the testimony the remedy was with the learned judge who conducted the trial. He was not asked to grant a new trial, as the rule for that purpose, doubtless for prudential reasons because of the smallness of the verdict, was withdrawn. The judgment is affirmed.