Cumberland & Pennsylvania Railroad v. State

Bartol, C. J., delivered the opinion of the Court. Thomas Hogan the husband and father of the equitable plaintiffs was employed as an engineer on the appellant's railroad, and was killed on the 5th of May 1874 by the explosion of locomotive engine Ho. 22 of which he then had charge. This suit was brought to recover damages sustained by his widow and minor child by reason of his death. The appeal is by the defendant, and brings up for review the rulings of the Circuit Court upon the prayers, and the instruction given by the Court to the jury. The accident which caused the death of the engineer is the same as that by which Moran the fireman was killed, and which gave rise to the suit of the Slate, use of Moran, decided at the last term, (44 Md., 283.) The decision of Moran's case has settled several of the questions which were raised by the prayers of the appellant, and has very much narrowed the subjects open for discussion on the present appeal. In this case there was no evidence of negligencé on the part of the Company in the selection of faithful and competent employes; the ground of the action and the liability of the defendant rested upon the alleged facts that the engine was unsound and unsafe when it was purchased and put upon the road, and so continued till the time of the accident, and that the agent of the defendant, by whom it was purchased, did not exercise ordinary care in [240] purchasing and procuring a sound and safe engine. These facts were submitted to the jury, hy the instruction given by the Court, and by the defendant’s fourth, seventh and eighth prayers which were granted. It was decided in Moran’s case that “it was the duty of the defendant to supply, as far as it could be done by the exercise of due and proper care, safe and sound machinery ; that the persons authorized to make the selection of and purchase the engine, must be taken as the representatives of the defendant, and any omission or neglect Committed by them must be regarded as' that of the defendant and for which it is liable.” It was held that the agents thus entrusted with the duty of purchasing the engine, are not to be regarded in that respect as the fellow-servants of those operating it. There was therefore no error, as matter of law, in submitting to the jury the question of negligence in procuring the engine and- putting it upon the railroad. But the appellant alleges that “there was no evidence of the original and continued unsoundness of the engine and of the alleged negligence of the defendant in procuring it.” And this is the only question presented for our decision on the present appeal. In disposing of this question it is not our duty, nor have we the power to decide what weight ought to be given to any part of the testimony, that was a matter for the jury to determine. We can do no more than ascertain whether there was any evidence legally sufficient to be submitted to the jury, upon these questions of fact. Without undertaking to recapitulate the testimony in the cause, we are all of opinion, upon- a careful examination of the record, that there was evidence on all these questions, .legally sufficient to go the jury, and that the Circuit Court committed no error in submitting them to the decision of that tribunal, whose exclusive province it was to judge of the weight of the testimony and the inferences of fact to be drawn from it. [241] (Decided 22nd June, 1876.) This being, as stated in the appellant’s brief, the only question presented for our decision, it is unnecessary to notice more particularly the several prayers of the defendant, which were rejected. Finding no error in the rulings of the Circuit Court the judgment will be affirmed. Judgment affirmed.