Maryland v. Baltimore & P. R.

16 F. Cas. 994, 1 Hughes 337

• Court: District Court, D. Maryland
• Decided: April 15, 1877
• Status: Published

Opinion

GILES, District Judge,

in instructing the jury, said he approved the decision in 20 Md. 220, but was not disposed fully to approve the subsequent decisions of that court to the extent to which they seemed to go on the point. That he was disposed to limit this to cases where the employé injured was managing machinery the defects of which he knew, or where the damage caused by negligence of the employer or his general agent was in some particular in reference to which the employé was chargeable with the duty of operating and reporting to the employer if any danger existed, but he would not carry the principle so far as to affect with such responsibility any employé injured by negligence of the general management of a railroad, in'some matter under the scope of the general management, and which they alone controlled and determined.

On the point raised that, as the son of the plaintiff was over twenty-one, no recovery could be had, THE COURT decided that the true meaning of the statute was to give an action where an actual pecuniary damage had resulted by the death of the child, no matter what his age.

THE COURT then gave the following written instructions to the jury:

1st If the jury shall find from the evidence in this case that, when Patrick Murtaugh was killed by the collision between a passenger train and a gravel train on defendant’s road, he was a fireman in the employment of defendant and that this collision was caused by the neglect of the conductor, engineer and flagman of the gravel train to close the switch, after they had backed said train on the siding to enable the passenger train to pass, then the plaintiff is not entitled to recover, against the defendant, for such injury, unless she should satisfy the jury that the defendant had not used ordinary and reasonable care-in the selection of officers in charge of said train; and, as she has offered no evidence on this point, she cannot recover in this case unless she recover the second instruction of the court.

2nd. If the jury shall find from the evidence, that the siding on which the gravel train had backed is quite near the Washington turnpike road, that said road is much used by market-people with their wagons, and which is here crossed by defendant’s road, and which requires the engineer of a passenger train, as he approaches the said turnpike, to give his attention to vehicles coming along the same, and that but for this necessity the engineer of the defendant’s passenger train, going south, would have seen-on this occasion the signal that the switch was open, and would have been able to slow his train in time to avoid the collision, then ordinary care and prudence required of defendant the appointment of a flagman, to be stationed at this junction of the two roads; and, if the jury shall find that defendant had no such officer,' and that if there had been such an officer stationed at this point the collision would have been prevented, the defendant is liable in this action for such damages as she, the plaintiff, may prove she has sustained by the death of her said son.

3rd. If the jury shall find for the plaintiff, they shall give such sum as they shall find from all the evidence will be an adequate compensation for the loss of such pecuniary support as the jury shall find the plaintiff would have received from the deceased; and in making such estimate they shall consider the age of the plaintiff and the probable duration of her life.

Verdict for plaintiff for $2,500.