Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-02-13
Circumstances Of the Injury Of
Charles E. Cumberland.
DECISION OF TIE SUPREME COURT
Obligations of Railways and the
PeriIs of Trespass
CONTRADICTORY NEGLIGENCE

Railroad Company, plaintiff in error
against Charles Emmett Cumberland. AS
told in The Star at the time of the decision,
the lower court was upheld in its decision
in favor of damages for the boy, who was
run over and injured by a train.
Action was begun in this case to recover
damages for injuries to the twelve-year-
old boy. Charles Emmett Cumberland. the
decision which was handed down by Mr.
Justice Brown defining questions OF re-
sponsibility for railroad accidents in
very full and lucid manner.
The undisputed facts were that the plain
tiff, who was twelve years and four months
Of age at the time of the accident, was
street lamplghter by occupation, and for
more than a year prior thereto mad oeen
engaged. under his fathers directon, IN
lighting street lamps in the vicinity of the
c1mpany's tracks on Maryland avenue in
this city.
How the Accident Occurred.
The accident occurred about dark on the
evening of December 10, 1894 The weather
was misty. according to some of the wit
nessesi rainy, foggy and very cold, accord
ing to others. The boy, having lighted g.
lamp on the south side of Maryland avenue
between 13la and 18th streets, started
across Maryland avenue and the tracks OF
the company, for the purpose OF lighting a
lamp directly opposite on the north side of
the street. There was curve in the tracks
at this point. made by turn in the railroad
from Long bridge into Maryland avenue.
There was no crossing for persons or We,
hicles between 1871 and 14th streets. and
the street on each side of the right OF way
was separated therefrom by curbs which
projected eight inches above the adjacent
roadway. These curbs were about five feet
from the outer rails on either SIDE and the
tracks were carried upon ties, elevated
about eighteen inches above the level OF
the curbs and about two feet higher than
the surface of the street. The plaintiff,
having lighted a lamp on the south side,
started across the street: mounted the ele-
waited roadway, in front of a train coming
up from Long bridge with the tender ahead
of the engine. and just as he stepped upon
the track was struck by the tender,
knocked Gown and run over. There was a
hand signal lantern swung on the advanc-
ing end of the tender, and at the time of
the accident it appeared to have been burn
ing
At this part Of the avenue there are four
or five railway tracks-two main tracks
the north side, used for passenger trains:
third to the south of these two, used for
freight trains, which was the one on which
the accident occurred; south of that track
diverging eastwardly into the freight sta
tiOn of the Richmond and Danville Rail-
road Company TO the south of the avenue.
and still further south. and south even of
the gas lamp which the boy had lit, a
switch diverging from the east into pri-
waite coal yard. About the place of the ac-
cident, and thence westward toward 14th
street. the tracks begin curve so as to
redCh the Long DrldSe at the FOOT OF that
street. and to the south. upon the inner
side of this curve and about the line of
18th street, there was swftchman's box,
which to some slight extent obstructed the
view from the east Of trains coming to the
avenue from the bridge.
As the boy had passed was passing
the Richmond and Danvine track, and was
approaching the freight track. his atten-
ton was directed to a passenger train go
ing out on the nOrtherumoSt track toward
the bridge. When this had passed he pro-
cd on iS and hayri inc
stepped on the freight track, he was struck
knocked down and injured by the tender
attached to an engine drawing the work
train. which, he states. he had not seen, al
though he testifes that he had looked in
that direction. had listened for approaching
trains and had neither seen nor heard any.
The defense rested chiefly upon the con-
tributory negligence of the plaintiff In
crossing the track at this point without
sufficient care in looking out for the APP
preach of trains.
The trial resulted in a verdict for the
plaintiff in the of s.. 900, upon which
Judgment was entered. The case was car
ried by the defendant to the Court of APP
Peals, and the Judgment of the Supreme
Court affirmed, whereupon defendant sued
out writ of error from this court.
Negligence of the Defendant.
Mr.. Justice Brown. in delivering the opin-
ion of the court, said:
Upon the trial the court left 1t to the
Jury to say whether the defendant was
sullty OF negligence IN either Of four par
uculars: % In failing to protect the
tracks by a fence at the point where the
accident occurred; co in failing to provide
proper light to give warning of the ap-
proach of the train (3) the distance passed
over by the train after ii struck the plain
tiff and before 1t was brought to a stop as
bearing upon the question % speed; (4J and
whether the persons in charge of the engine
Were keeping a proper lookout These
questions We're all left to the Jury and
presunpuveiy at least, determined against
the defendant.
Il The regulations of the Commissioners
of the District, adopted in pursuance of an
act Of Congress, approved January 26 1887
and a joint resolution of February % 1892
require that whenever the grade of a steam
railroad track IS approximately even with
the adjacent surface, the line OF the road
shall be securely closed on both sides with
a substantial fence &c There was no
fence upon either side of the track where
the accident occurred. The facts were that
the track, at the point where the plainfi+f
was attempting to cross at the time Of the
accident. Was not over two feet two inches
higher than the level of the street and was
considerably less than that The argument
OF the defendant Is that. under this state of
facts. the court had no right to submit the
question TO the jury whether within the
meaning of the regulations, the grade of
the track at this point was approximately
even with the adjacent surface of the
street. There was also some testimony
tending to show that 1t was impracticable
to build a fence there consistently with the
proper management Oh the road
Absence of n Fence
Had the sole design of the fence been
to prevent the crossing of vehicles AT this
point, it would be difficult to say that an
elevation of two feet two inches above the
surface of the street made the track an
proxtmateiy even with the adjacent sur
face; but evidently more than this was
contemplated by. this regulation which
looked to the protection of pedestrians as
well as vehicles The object of the fence
Is to prevent all crossing OF the tracks.
and unless the elevation be such as To
render il practically impossible to cross
II Is a question for the jury whether the
track Is not approximately even with the
surface of the street. An elevation of two
feet would afford no serious obstacle to the
crossing OF foot passengers. and apparent
ly presented no difficulty to the pIaintifY
as ne had already mounted the track when
he was struck by the tender Had there
been d fence upon either side Of the track
between l3l2 and 14th streets. the plaintiff
would have been obliged to cross the track
at one Of the street crossings, in order TO
reach the lamp which he intended to light
aud the accident would probably not have
occurred. As bearing upon the practical