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evidence that the plaintiff sustained the injuries testified to by the plaintiff's witnesses, and that the injuries were caused by a defective condition of the locomotive called in the testimony 'runaway locomotive,' and if they find that the said defective condition was due to a latent or hidden defect not discoverable by any reasonable or ordinary inspection, then their verdict must be for the defendant." Granted.

struct the jury that there is no evidence in | struct the jury that if they find from the this case legally sufficient to entitle the plaintiff to recover, and that therefore under the pleadings and evidence herein the verdict must be for the defendant." Refused. "(3) The defendant prays the court to instruct the jury that if they find that the locomotive called in the testimony 'runaway locomotive' was standing on the siding on the day the injuries were sustained by the plaintiff, as testified to by the defendant's witnesses, and that the said locomotive was in charge of the defendant's employés, as testified to by the defendant's witnesses, and that the said locomotive ran away, and that the said running away was occasioned by the neglect or carelessness on the part of those placed in charge of the same by the defendant, then their verdict must be for the defendant." Refused.

"(4) The defendant prays the court to instruct the jury that if they shall find that the plaintiff was in the employ of the defendant in July, 1905, as engineer, and that as such engineer he ran engine No. 1, as testified to by him, and that in running said engine he discovered that she was defective in the manner testified to by him, and that, notwithstanding such discovery, he remained in the employ of the defendant until August 6, 1905, and that on said last-mentioned day he was injured in the manner testified to by the plaintiff and his witnesses; that engine No. 1 ran away by reason of the defect aforesaid the plaintiff is not entitled to recover under the pleadings and evidence, and their verdict must be for the defendant." Refused.

"(7) The defendant prays the court to instruct the jury that an employer is bound to use reasonable care to procure sound machinery and appliances for his employés, but it is not bound to keep such machinery and appliances free from defects." Refused.

"(8) The defendant prays the court to instruct the jury that if they find from the evidence that the injuries to the plaintiff were the result of an inevitable accident, then their verdict must be for the defendant." Granted.

"(9) The defendant prays the court to instruct the jury that if they find from the evidence that the plaintiff sustained the injuries, as testified to by the plaintiff's witnesses, and that the injuries were caused by a defective condition of the throttle valve of the locomotive called in the testimony 'runaway locomotive,' and if they find that the defective condition of the throttle was due to latent or hidden defects not discernible by any reasonable or ordinary inspection, then their verdict must be for the defendant." Refused.

"(10) The defendant prays the court to instruct the jury that inasmuch as the evi"(5) The defendant prays the court to in- dence shows that on August 6, 1905, the struct the jury that if they shall find that plaintiff was employed by the defendant in on August 6, 1905, the plaintiff was in the the capacity of engineer in running its enemploy of the defendant in the capacity of gine, and inasmuch as the evidence further engineer, and that late in the afternoon of shows that on the morning of August 6, 1905, said day was bringing, in said capacity, one the witness Exeter, also in the employ of the of the defendant's trains to Love Point, and defendant in its machine shops, placed enif they shall further find that engine No. 1, gine No. 1, then in good condition, on the on August 6, 1905, was in good order; that side track at Love Point, turned off the steam on the morning of that day she was moved by closing the throttle valve, put the reby the witness Exeter to the water tank, verse bar in the center, chocked her wheels and then returned to the side track; that as testified to by him, and then left her in after reaching said track, said witness turn- charge of the hostlers who were competent ed off the steam by closing the throttle employés, and that said engine stood on valve, put the reverse bar in the center, said side track until late in the afternoon chocked her wheels, and then left her in of the 6th day of August, and that said side charge of the hostlers; that said hostlers track ran upgrade towards and entered the were competent employés; that said en-roundhouse track by a switch, and that the gine stood on said side track until late in roundhouse track entered the main track the afternoon of August 6th—then their ver- | by a switch, and that said engine in order to dict must be for the defendant, notwith- get on the main track had to run through standing they may further find that late in said two switches, their verdict must be for said afternoon said engine started off in the defendant under the pleadings and evithe manner testified to by the plaintiff's dence." Refused. witnesses, and collided with the defendant's train aforesaid, on which plaintiff occupied the position of engineer, thereby injuring the plaintiff." Refused.

"(11) The defendant prays the court to instruct the jury that inasmuch as the evidence shows that engine No. 1 was placed on the side track by the witness Exeter, her

Ralph Robinson and Edward Duffy, for appellant. William Colton, for appellee.

valve, her reverse bar in the center, and her wheels chocked, and inasmuch as there is no evidence to show that engine No. 1 was defective in such a way that she could start off PEARCE, J. The appellee, who was emin the condition and under the circumstances ployed by the appellant as an engineer to opin which she was placed by the witness Ex-erate certain of its trains over its railroad eter on said side track, and inasmuch as the between Love Point in Queen Anne county, evidence shows that the defendant employ- Md., and Rehoboth, Del., brought this action ed competent employés, and placed them in to recover damages for injuries received by charge of said engine, their verdict must be him in a head-on collision between the engine for the defendant under the pleadings and and passenger train which he was running evidence in this case." Refused. at the time and another engine with a tender and coal car attached, which was unmanned and running wild on the same track; the railroad being a single track road. The collision occurred about 8 o'clock in the evening of August 6, 1905, at a point a few miles from the Western terminus of the road at Love Point, and almost immediately after crossing Kent Island Narrows, the stream which separates Kent Island from the mainland of Queen Anne county. In crossing this stream the plaintiff had reduced the speed of his engine and train to about 10 miles an hour in accordance with standing instructions, and was just getting under headway again when he and his fireman caught sight of the runaway engine about two engine lengths away, when it was impossible to do anything to avert the collision or break its force, and the result was that

"(12) The jury are instructed that the defendant is not an insurer of the lives or limbs of its employés, but is bound to use ordinary care for their protection; that the plaintiff, when he accepted employment with the defendant, assumed all risks ordinarily incident to the business as conducted by the defendant; that among such risks is the negligence of co-employés; that Exeter and the two hostlers are co-employés of the plaintiff, and if the jury find that engine No. 1 ran away by reason of the negligence of said Exeter and the two hostlers, or any of them, the plaintiff is not entitled to recover, and their verdict must be for the defendant, provided that the jury shall find that the defendant used ordinary care and caution in supplying a sufficient number of hostlers to watch and attend engine No. 1

placed on the side track in question, under the plaintiff was thrown from his engine unthe conditions and circumstances testified to he was not able to do anything for over a conscious, and was severely injured; that by the plaintiff's witnesses." Granted. "(13) The jury are instructed that the de-ices of $100; that he was scalded, cut on the year, and incurred a bill for medical servfendant is not an insurer of the lives or limbs of its employés, but is bound to use ordinary care for their protection; that the plaintiff when he accepted employment with the defendant assumed all risks or

dinarily incident to the business as conducted by the defendant, which he knew, or could have known, by the use of ordinary care, and if the jury shall find that the witness Exeter on August 6, 1905, placed engine No. 1 on the side track; that he chocked her wheels as testified to by him; that he closed her throttle valve and put the reverse bar in the center, and then left her in charge of two hostlers, as testified to by him; that said side track ran upgrade to and joined the roundhouse track by a switch, and that the roundhouse track joined the main track by a switch, and that said engine No. 1 could only get into the main track by running through said two switches; that engine No. 1 stood as so placed until late in the afternoon of August 6th, their verdict must be for the defendant under the pleadings and evidence in this case, unless the jury shall find that the defendant did not use ordinary care and caution in supplying a sufficient number of hostlers to watch and attend to her." Refused.

Argued before BOYD, C. J., and PEARCE, SCHMUCKER, and WORTHINGTON, JJ.

head, and had his teeth knocked out, and still suffers much and constant pain; that he attempted, after the lapse of a year, to run

a train on defendant's road, and did so for about a month, when he was unable to stand

it, and was obliged to give it up, and took Company at the Pratt Street Power House, up firing for the United Railways & Electric which is much lighter work than running a month, and his pay as fireman for the a train. His wages as engineer were $80 United Railways was $2.25 per day, and he bekept a livery stable, but made not over $1 a gan that work in June, 1907. Before that he day at that, and he only kept this stable about six months in all. The engine he was running at the time of the collision was known as No. 3, and it was properly manned and lighted. The runaway engine was known as No. 1, and was unlighted and unmanned. The jury found a verdict for the plaintiff for $3,000, and from the judgment on that verdict the defendant has appealed.

There
The

There are 12 bills of exception in the record, of which 11 are to rulings on evidence, and 1 to the ruling on the prayers. are three counts in the declaration. first count charges, as the cause of the plaintiff's injuries, that the defendant did not exercise due and ordinary care in the selection, employment, and retention of reasonably com

petent and proper co-employés with whom the plaintiff was required to work. The second count charges the defendant with negligence in failing to provide reasonably safe and proper tools and equipment for the performance of the work required of its servants, and exposed him to unnecessary risk and danger while so employed, in that while running his own train on defendant's road on August 6, 1905, his said train, because of the unfit and unsafe condition of another train on said road, collided with said lastmentioned train, and he was injured in consequence thereof. The third count charges that the defendant neglected to exercise due and ordinary care in the inspection of the equipment of the railroad, in and about which the plaintiff was required to work, in consequence of which the plaintiff's train collided with an unmanned and wild engine on the same track, causing the injuries complained of.

The first exception arose in this way: The plaintiff, after testifying to the facts of the collision, said that he had run engine No. 1 before the collision, and, being asked what was her condition at that time, replied that she was not in very good condition. The defendant moved to strike out that question and answer, and the court said, "You will have to bring it nearer than that-say within a week or so." Plaintiff's counsel replied, "I will cover that," and the court said, "It will be admitted, subject to exception." The plaintiff then testified as follows: "I think it was in July I ran her, the latter part of July to the best of my recollection. It was in bad shape; it was an old engine, and when you ran her on the road, and you happened to take your hand off the throttle, her throttle bar would work open. The throttle bar is what gives her life; it is what makes her move. When it opens it puts her in motion." The court here asked, "Why did it open?" and he replied, "The throttle was old and worn out, and the spring was weak to the best of my judgment." He was then asked to describe the type of engine No. 1, and answered, "I cannot exactly tell what type she was; the only thing I can tell you is that she was old and worn out apparently when they got her." Defendant moved to strike out the last answer as not responsive to the question, and the court refused the motion. We do not think it can be said this answer was not fairly responsive to the question. This man was not a mechanical engineer trained or experienced in the construction of locomotives. He was a farmer first, then foreman of a force for the defendant, and in 1905 became one of its locomotive engineers. His answer imported that it was an old type, being, as he added, worn out when the defendant got it. Moreover, this answer could not work any injury to the defendant, because the next witness, John F. Hess, a fireman of defendant, and assistant

was "an old engine, about the type used and operated on the Philadelphia, Wilmington & Baltimore Railroad many years ago." There was therefore certainly no reversible error in this exception. The second, third, and fourth exceptions all relate to proof of the plaintiff's earning capacity as affected by his injuries, and may be considered together. Having previously described his injuries, and stated that in consequence he was unable to pursue his former occupation, or to perform as hard work as before, he was asked in the second exception what income, if any, he had derived from any source since the accident. He replied that he was not able to do any work until June, 1907, when he went to firing for the Electric Railways at a power house, which is light work. In the second exception he was asked what he received for this work, and he replied $2.25 a day. In the third exception he was asked what income, if any, he had before June, 1907, and he replied only from a livery stable he kept for about six months, which gave him a bare living, about $1 a day. It was certainly proper for the jury to know how his injuries affected his earning capacity, and there could be no better evidence of this than a comparison of what he had testified were his earnings at the time of his injury, with those he was capable of earning and did receive afterwards. It was the privilege of defendant, upon cross-examination or otherwise, to show, if it could, that he did, or could with proper effort, have earned more than he testified, and we can perceive no error in these rulings.

The fifth, sixth, and seventh exceptions relate to the exclusion of evidence offered by defendant as to its custom in the conduct of its business. The defendant's assistant master mechanic, Louis Exeter, being called for the defendant, testified that on the morning of the accident he repaired the injector of engine No. 1, which the hostler reported out of order, and that when this was done she was in first-class order; that he then backed her to the siding from the main track to the roundhouse, chocked her, put a bar in the center, and left her; that he looked at her again about 5:30 that evening, and her throttle bar and reverse bar were all right, and she was in first-class condition for service; that the duties of a hostler are to clean and fire the engines, and keep them steamed and watered, and to be around the roundhouse and watch the locomotives; that some hostlers look after 5, some after 10, and some as many as 30, engines, but on that day, at that time, there was only one to look after. He was then asked, "Is he expected to stay on the engine?". This was objected to, but was answered "No," after objection was made, and on motion this was stricken out. This was the fifth exception. He was then asked, "What is the custom down there as to loco

answer. What has been said of the three preceding exceptions is applicable to these, and in addition thereto both are leading questions. The last really asks for a rule of the company, and the best evidence would be the rule itself, to be followed by proof of compliance on that occasion with the rule. Notwithstanding this ruling, however, the record shows that after it was made this witness testified "that witness received, and his instructions were, to report the condition of the engine, and that he reported it to the repair shop," and the record also shows that before the eighth exception he testified without objection that "he reported her condition was all right for service," so that the defendant received the full benefit of the question in the ninth exception.

done with them, what is done as to their, brings it in." Both questions were objectsteam, and how is their steam kept?" This ed to, and the witness was not allowed to was the sixth exception. He was further asked, "What was the custom as to railroad companies leaving engines in the yard when they are not in actual service, with steam on them?" and this is the seventh exception. It would hardly be necessary to cite authority to sustain the rulings on the fifth and sixth exceptions, since the usage or custom there inquired into was merely the custom of the defendant. Its custom might be either careful or negligent, and, in itself, could not aid the jury in determining whether the defendant was or was not negligent in its management of live engines left standing on a side track. That was to be properly determined from the evidence as to how that engine was cared for, under such instructions as should be sought and granted by the court. The servant does not assume the risk at- Marion F. Young testified for defendant tending the work as conducted in accord- that he was its assistant master mechanic, ance with his employer's individual methods. and saw engine No. 1 when she was deliverLabatt on Master & Servant, § 53, p. 137. ed to defendant in May or June, 1905, and He assumes only those which cannot be ob- that she was in good condition at the time viated by the exercise of ordinary care. Id. of the accident. He then testified at con§ 2, p. 4. The question which gave rise to the siderable length as to the construction of seventh exception is not in our opinion prop- engine No. 1, using a sectional blue print of a erly framed. It is not proposed to show a similar locomotive for the purpose of illusuniversal, or even a general, custom prevail- tration, and testifying that when the reverse' ing in railroad management. It is so vague bar is in the center (as Exeter had testified as to leave it in doubt whether it was intend- he left it when the engine was placed on ed to apply to all, or only to some, of the the side track), the locomotive could not vast number of railroads in this country. It move because the ports through which the does not limit the question to well-conducted steam is let into the steam chest are closed, railroads, and would permit the jury to and that the opening of the throttle would adopt a standard of care based upon the cus- not open the ports. He was competent to tom of other roads, whether careful or negli- so testify, and the testimony was proper for gent. The requirement that the inquiry as the jury. He was then asked, "Do you know to usage or custom in such cases should how this accident happened?" and, the plainrefer to well-conducted railroads was em- tiff objecting, he was not permitted to anphasized in Benson v. N. Y., N. H. & H. R. R.swer, and this constitutes the tenth excepby the Supreme Court of Rhode Island, 23 tion. We have carefully examined the tesR. I. 147, 49 Atl. 691, and also in L. & N. R. timony of this witness to discover the founR. v. Jones by the Supreme Court of Ala-dation for this question. There is not a parbama, 130 Ala. 473, 30 South. 592. In the ticle of evidence when this witness saw this latter case the court said: "A charge propos- engine or examined it, between its arrival ing to make a standard test of duty by the and this accident. The only evidence is usage of eight railroad companies was in- that he examined the steam pipes of this vasive of the province of the jury." We find engine after the accident, leading to the no error in these rulings. throttle, and they were in good condition. He said, "She was not just old junk, and that the company was keeping some of the crossheads and valves which they may use some day." There was no evidence that he was near the engine, or that it was within his sight when it escaped. But the defendant contends that he should have been allowed to answer this question, "both because he may have been present at the time No. 1 left, or because he found out the reason she left by an examination of her after the accident." If he was present when she escaped, that fact should have been affirmatively shown, as the foundation for the question, though we are not to be understood as saying that this alone would be a suffi

The eighth and ninth exceptions present the same question substantially, and differ , but little in principle from the exceptions just considered. James E. Willey, one of the defendant's locomotive engineers, had testified that he ran No. 1 from Rehoboth to Love Point the day before the accident; that the throttle did not leak, and he had no trouble with it, and he then stated what he did with this engine when he came in from that run. He was then asked, "Is it the practice down there for engineers, when they bring their locomotives in, to do just what you have done in this case?" and again he was asked, "State whether or not an engineer is expected to report the condition of his

and this it did not do. The witness Exeter testified that he repaired the injector, but he discovered no defect in the throttle, and made no repairs upon it. The witness Young, who succeeded Exeter as assistant master mechanic, made no repairs and discovered no defect. They both denied the existence at any time of such defect, and their denial went to the jury with the plaintiff's affirmation. Young testified that he had known this engine a long time when she was in the service of the Philadelphia, Wilmington & Baltimore Railroad, and that she was built in 1881. She was purchased from that company for defendant by Mr. Stratner, who was defendant's master mechanic at the time of trial also, but he was not produced as a witness. Upon a review of the whole situation we cannot doubt the refusal to strike out this testimony was correct.

of all that he saw at the time of the escape, | tinuous unless repaired. If repaired, it was and we cannot agree that this post mortem in defendant's power to show such repair, examination of an engine wrecked by such a collision could enable this witness to testify that he knew the cause of the accident. It is perhaps possible that as an expert machinist he might form some opinion of the cause of the accident, but we are not prepared to say that the expression of such an opinion would afford the jury any rational basis for a conclusion by them, and in our opinion the ruling was correct. At the close of all the testimony the defendant moved to strike out the testimony of the plaintiff, as to the condition of the engine in July, 1905, and the defect in the throttle bar, all of which was admitted subject to exception; also to strike out the testimony of John A. Roe, the fireman on plaintiff's train at the time of the accident, to the same effect as Brown's, relating to the condition of the throttle. The record shows that Roe's testimony was not admitted subject to exception, and therefore cannot be stricken out. Nor do we think the testimony of either should be. We think this testimony brings the inquiry sufficiently close to the accident in point of time, if there is no other objection to its admission. The defendant contends that proof of defect before an accident cannot be received without offer of proof to show that the thing remained in the same condition down to the moment of the accident.

This brings us to the ruling on the prayers of which the plaintiff offered 3, and the defendant 13. The plaintiff's first prayer was refused, and is not in the record, and his second and third were granted; the defendant's special exceptions thereto being overruled. The defendant's sixth, eighth, and twelfth prayers were granted, and its first, second, third, fourth, fifth, seventh, ninth, tenth, eleventh and thirteenth were refused, and the defendant excepted to the overruling of its special exceptions to plaintiff's second and third prayers, and to the granting of these prayers, and also to the rejection of its own refused prayers. We are told in the plaintiff's brief that his first prayer was founded on the doctrine of res ipsa loquitur,

In discussing this subject Mr. Wigmore, in volume 1, § 437, of his work on Evidence, says: "That no fixed rule can be prescribed as to the time, or the conditions, within which a prior or subsequent existence is evidential is sufficiently illustrated by the prece-but that prayer is not before this court. dents from which it is impossible (and rightly The defendant's first and second prayers so) to draw a general rule. They may be asked the court to instruct the jury that the roughly grouped into two classes-those in plaintiff could not recover under the pleadwhich the evidence has been received without ings and evidence. The defendant's tenth and any preliminary showing as to the influential eleventh prayers attempt to recite the evicircumstances remaining the same in the in- dence as undisputed, and assert that the verterval (thus leaving it to the opponent to dict must be for the defendant under the prove their change by way of explanation pleadings and evidence, thus withdrawing in rebuttal), and those in which a prelimi- the case from the jury. If the first count in nary showing is required. Whether it should this declaration, which charges negligence in be required must depend entirely on the case the selection and retention of reasonably comin hand, and it is useless to look to or wish petent co-employés, were the only count in for any detailed rules. * The matter the declaration, this question would be raised, should be left entirely to the trial court's but the second count charges negligence in discretion." This is in accord with what was failing to provide proper tools and equipment, said in Brooke v. Winters, 39 Md. 509, that and the third count charges negligence in "whether the proposed proof of facts subse- failing to properly inspect its equipment. quent to the suit were admissible or not did The tenth and eleventh prayers should have not depend upon the time of their existence been confined to the first count. Moreover, before or after the suit, but upon their rele- both these prayers are defective in assumvancy to the issue and their capability of ex- ing facts which it was for the jury to find. plaining it. The mere fact that such evi- The tenth prayer asserts that engine No. 1. dence referred to circumstances subsequent when placed on the side track on August 6th to the suit did not, per se, render it collater- was "in good condition," whereas there was al and inadmissible." We think the discre- evidence tending to show it was not in good tion of the court was not abused, or mistak-condition. The eleventh prayer asserts that enly exercised, in refusing to strike out this "there was no evidence to show that engine

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