Baltimore & Ohio Railroad v. State ex rel. Chambers

Roberts, J., delivered the opinion of the Court. This action was brought in the Circuit Court for Frederick County, in the name of the State, as plaintiff, for the use of the widow and children of John W. Chambers, who was killed by what is alleged to have been the wrongful act, neglect or default of the defendant corporation. There was a verdict for the plaintiff and judgment thereon, from which the defendant has appealed. The accident happened at a station on the main line of the defendant’s road in Frederick County, known as East -Brunswick. There are in the town of Brunswick two stations on said road; one is known as East Brunswick, and the other as West Brunswick. At about the hour of noon, on the 21st day of April, 1894, the deceased, John W. Chambers, being at the — 382 — West Brunswick station, remarked, that having been disappointed in seeing a party, he would go to Washington, D. C., and shortly thereafter boarded a local passenger train, No. 16, which carried him to the East Brunswick station, where he could obtain a ticket to Washington on an express train. As train No. 16 reached the West station, he jumped on it between the tender of the engine and the first car. It is contended that he was, at the time he got on the train, somewhat under the influence of drink. He rode to the East station on the' platform of the postal car, which was coupled to the tender of the engine. When he reached the East station he got off on a platform between the railroad tracks, and started in the direction of the depot. Other passengers were crossing at the same time, as well as some of the employees of the defendant. There is a -double track in front of the station used by passenger trains, and as the deceased was about to cross the intervening track between the station and the train from which he had alighted, an express train running westerly came by and struck and killed him. There is conflict of testimony, both as to the speed at which the train was running, and as to ringing of the bell and the blowing of the whistle. The first exception found in the record of this appeal arises upon the refusal of the Court below to strike out the testimony of Mrs. Chambers, the widow, as to the earnings of her husband ; she having testified that she had not seen or held any communication with him, for a period of from two to three years prior to his death. We do not think, however, that the admission of this testimony furnishes any ground for reversal, as the objection to it was not timely, and the testimony of Lizzie Sykes and of S. B. Barr, both of whom testified to the same effect, was admitted without objection. Hayes v. Wells, 34 Md. 512 ; Leffler v. Allard, 18 Md. 545; Cole v. Harrington, 7 H. & J. 146. The second and third exceptions relate to conversations which took place between the decedent and certain witnesses, in which he expressed his intention of going to Washington. Such — 383 — declaration of the decedent made at the very moment of time immediately preceding the act of the defendant company, by which he lost his life, form part of the res gestae, and were properly admissible. In support of this view, Mr. Greenleaf, in his work on Evidence, vol. i, §108, pointedly observes, that “ the affairs of men consist of a complication of. circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and in its turn becomes the prolific parent of others; and each, during its existence, has its inseparable attributes and its kindred facts, materially affecting its character and essential to be known, in order to a right understanding of its nature. These surrounding circumstances, constituting parts of the res gestae, may always be shown to the jury, along with the principal fact; and their admissibility is determined by the Judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion, it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description.” The plaintiff was entitled to this testimony, as having an important bearing upon the right of the decedent to be upon the defendant’s property, and pass over a customary way to the ticket office of the defendant, for the purpose of purchasing a ticket over its road to Washington. In this view, it becomes very immaterial how the decedent got from West Brunswick station to East Brunswick station, if when he got there he was rightfully on defendant’s premises, and took the same course and traversed the same path usually taken by passengers and employees of the defendant from where No. 16 delivered its passengers to the ticket office, where passengers obtained their tickets for passage on the express train of the company to the city of Washington. The chief question in this case, as stated in the appellant’s brief, is, “ was Chambers, at the time of his death, a passenger of the appellant and thereby entitled to all the safeguards the law'throws around one in that position; or, on — 384 — the other hand, was he a trespasser, or at most a licensee, to whom the appellant owed much less care and protection.” It is conceded to be the well-settled rule that a person is a passenger who enters upon depot grounds by the approaches furnished by the carrier. The fare does not have to be paid, nor the train entered, but the person must merely enter within the control of the carrier at the depot through the usual channels of business with the intention of becoming a passenger, by either paying fare before or after entering the train. We have already adverted to this phase of the case and will have occasion to make more particular reference to it, when we come to the consideration of the prayers. The fourth exception is taken to the ruling of the Court below in permitting the time-table of the defendant in force on April 2 ist, 1894, the day of the accident, to be offered in evidence. We fail to recognize the force of this objection, or to perceive wherein the defendant is injured by its admission. The- other proof in the record on this subject is doubtless conflicting, but its effect is directly in the same line and not materially variant therefrom. As part of the same exception, is the objection to the admissibility of Rule No. 441 of the company, in force at the time of the accident. There is nothing in the record to. show that this was a private rule for the guidance of the employees of the appellant, and not intended for the eye of the public, and no reason has been assigned why the rule should not have been open to public inspection, as it was a prudent and justly precautionary measure, beneficial alike to all parties concerned. If it be true that the rule was only intended for the servants of the company, it was not on this occasion observed by them, but if it had been a rule of the company previously complied with, it was notice from which the public had a right to infer a continuance of the custom. Yet without any rule upon the subject, it was negligence on the part of the company to run its train at a high rate of speed through a station where another train was discharging passengers. It was unquestionably the right, and we — 385 — think clearly the duty of the appellant to have made proper regulations for the safe conduct of its business in the protection of the lives of its passengers, and the preservation of property entrusted to it for transportation. The rule referred to is as follows: “441. When one passenger train is standing at a station receiving or discharging passengers on double track, no other train (whether passenger or freight), will attempt to run past until the passenger train at the station has moved on, or signal is given by the conductor of the standing train for them to come ahead.” We think the plaintiff was entitled to the benefit of the rule in evidence before the jury. Doubtless no such rule would have been adopted by the defendant, even for its own protection, if experience had not demonstrated its absolute necessity. If the rule was only intended for, the protection of the property of the defendant, it seems to us to be a most salutary precaution to have been followed for the preservation of the lives of the passengers of the defendant, or of those seeking to become passengers. This Court said, in Hauer’s case, 60 Md. 449, that, “ passengers are justified in assuming that the company has, in the exercise of due care, so regulated its trains that the road would be free from interruption or obstruction when trains stop at a depot or station to receive or discharge passengers.” It thus significantly appears that the doctrine just announced and Rule 441 are closely analogous. The fifth exception is taken to the refusal of the Court below upon the objection of the plaintiff to permit inquiry to be made as to whether or not the decedent saved anything out of his earnings. The question was properly excluded, and we think, wholly irrelevant. At the conclusion of the plaintiff’s case, the defendant offered five prayers, all of which the Court rejected. It will not be necessary for us at this time to give attention to the propositions of law contained in these prayers, as the same questions are again presented at the conclusion of the case, and will then receive consideration. The Court granted the plaintiff’s — 386 — first, fourth, fifth, sixth, seventh, eighth, ninth and tenth prayers, and rejected the first, second, sixth, ninth, tenth and twelfth prayers of the defendant. Special exceptions were filed by defendant to first, fourth, fifth, seventh and eighth prayers of the plaintiff, on the ground that they assume as a fact proven that said decedent was about to cross the north track of defendant’s road to go to the ticket office of the defendant at East Brunswick station for the purpose or with the intention of procuring a ticket to Washington, that he had business which took him to the ticket office. To the granting of the said prayers of the plaintiff and the rejection of said prayers of the defendant, the defendant objected. We will first consider the plaintiff’s exceptions to first, fourth, fifth and seventh prayers, which have been specially excepted to on the ground just stated. In considering these prayers and the exceptions to them as being without evidence to support them, the relation which decedent held to the defendant at the time of his death, and immediately prior thereto, comes prominently into view. In passing upon the second and third exceptions we had occasion to examine the relevancy of certain conversation offered to show the decedent’s intention when he left West Brunswick to go on the train No. 16 to East Brunswick. It is not necessary to a proper determination of the mutual rights of the parties to this record, that we should be governed by the technical definitions of who are passengers and who are not. The question must be decided upon a just ascertainment of all the circumstances surrounding the occurrence. It is not exclusively passengers who have rights against railroad companies when upon their property. But each case must be dealt with as the evidential facts and circumstances determine its character. Now, in this case we think the jury was justified in finding.from the evidence that Chambers left West Brunswick station on the day of his death, with the intention of taking an express train at East Brunswick station for Washington. It is wholly im — 387 — material how he got from the one station to the other. There is evidence in the cause from which the jury were at liberty to infer, that when he crossed the railroad track from No. 16 train to the station, he was in quest of a ticket to Washington. He took the same route to the ticket office as that pursued by other passengers and certain employees', of the appellant. He was not required under the circumstances of this case, when he reached the track, “to stop,, look and listen.” This rule is not one of universal application, except in cases when it is applied to public road crossings. It was impossible for passengers or other persons to reach the station from where No. 16 train stopped without walking across the north track. This Chambers sought to do, and lost his life in the effort. He was a book agent much accustomed to railroad travel, and. therefore familiar with the risks and dangers incident to such travel; and it is not a reasonable inference to be drawn from the usual conduct of men, that if he had noticed the approach of No. 5 train, he would have deliberately walked to his own destruction. The company, so far as the record discloses, had provided no way of approach or crossing to the ticket office, from where No. 16 accommodation train was discharging its passengers, except across the north track. We think, as hereinbefore indicated in discussing the exceptions to the testimony, that there is evidence in the record from which the jury were at liberty to find, “that the decedent was about to cross the north track for the purpose of procuring a ticket to Washington.” His language and his conduct both contribute to the assertion of his purpose and intent. This was the only material question requiring consideration in the plaintiffs’ first, fourth, seventh and eighth prayers. The plaintiffs’ fifth prayer is objected to as being misleading. It instructs the jury that if they find from the evidence that Chambers had on the morning of April 21st, 1894, used intoxicating drink, and was slightly intoxicated when he got aboard train No. 16 at West Brunswick, but that he was not drunk at the time of the accident, then such — 388 — use of intoxicating drink and such intoxication are not evidence from which the jury may infer want of ordinary care and prudence. This question has frequently been before the Courts, and views somewhat in conflict are the result. It has been repeatedly held that intoxication of the injured party does not constitute negligence per se on his part. Holmes, adm., v. Oregon, &c., R. R. Co., 5 Fed. Rep. 523; Alger v. Lowell, 3 Allen, 402. And in the case of the B. & O. R. R. Co., v. Boteler, 38 Md. 568, this Court held that intoxication on the part of the plaintiff at the time of the accident did not constitute negligence in law warranting a non-suit or a peremptory instruction for the defendant. We think the Court committed no error in granting this instrucvtion. It might have gone farther and submitted the circumstances of the plaintiffs’ drinking, and the degree of his intoxication, which the jury would have a right to consider upon the question of due care to be exercised by the decedent, but the prayer is not defective because of this omission. The defendant had the right to such an instruction, but it has no right to complain because it did not request it. The legal proposition which the prayer embodies is undoubtedly correct. It necessarily follows from what we have already said respecting the right of Chambers to cross from train No. 16 to the ticket office and station at East Brunswick, that we affirm the ruling of the Court on the ninth prayer of the plaintiff. In granting the plaintiffs’ first, fourth, fifth, sixth, .seventh, eighth, ninth and tenth prayers, and the defendant’s third, fourth, fifth, seventh, eighth and eleventh prayers, the law of the case hás been correctly given to the jury for their guidance. From the views which we have expressed •concerning the prayers of the appellee, little more need be .said of the propositions of law submitted by the appellant. Nothing was said in the argument before this Court as to the demurrer to the declaration, and we have treated it as having been abandoned. But the appellant’s sixth prayer • contained a proposition which we think is not sustained, — 389 — either by reasonor authority. It asks the Courtfor instruction, that if they find that the decedent had been separated from his family for a period of about twelve years immediateiy preceding his death, and that he had contributed nothing to the support of his wife or infant child during that period, that then the plaintiff was only entitled to nominal damages. In this we do not concur. The marital relation still continued to exist between the parties at the time of the death of the husband, and whilst they had not, for the period stated, lived together as man and wife, her legal rights had suffered no change or impairment. It is very clear from the testimony in the record, that the wife had not, by her own wrong, forfeited her right to a decent support from her husband in accordance with her station in life. The marital relation created this right, and it continued to exist in law to the death of the husband, and this, too, without reference to the will or wishes of the husband. When this prayer is viewed in connection with the appellant’s fifth prayer, which was granted, and which allowed the jury, in estimating damages, to take into consideration all of the facts stated in the sixth prayer, we fail to find any error in its rejection. From a careful consideration of the whole case, we find no error in the rulings of the Circuit Court upon the testimony or the prayers, and therefore affirm its rulings. (Decided June 18th, 1895.) Judgment affirmed with costs.