Baltimore & Ohio Railroad v. Breinig ex rel.Bitter

Bartol, J.,

delivered the opinion of this Court.

New cases have caused greater embarrassment to the Courts than those involving questions of negligence on the part of railroad companies, and their agents, in the management and conduct of their engines and trains. This grows, in a great measure, out of the nature of the question itself. Being generally a mixed question of law and fact, it is not very easy, at all times, to defino the limit that separates the jurisdiction of the Court from that of the jury.

While in the jurisprudence, both of England and this country, the general rule is established that the question of negligence is one for the jury to decide ; yet, as negligence consists in the failure or omission to perform some duty- *386 which, the law imposes, it is within the province of the Court to declare what that duty requires, or to lay down the rules of law applicable to the particular case, so that the jury may have some certain guide in forming their verdict. In the discharge of this duty the Courts have often attempted, by some general definition, to fix the standard or degree of diligence imposed by the law in particular cases; this, from the nature of the subject, and from the varied and complicated character of cases, as well as from the ambiguity and imper-. fection of our language, it is not possible to accomplish; and the attempt to prescribe such a standard has often produced difficulty and confusion instead of tending to establish plain and intelligible rules so as to aid the jury in their investigations, and restrain them within just and proper limits.

It is a very obvious principle of law, as well as of justice and common sense, that every one, in the prosecution of his business, is bound to exercise that degree of skill, prudence and care, to avoid inflicting injury upon others, proportioned to the danger. "When applied to railroad companies employing machinery propelled by the dangerous and powerful agency of steam, moving bodies of immense weight and bulk, often with great velocity, necessarily exposing to danger the lives and limbs, not only of passengers in the train, but of others whose occupations require them to go upon or to cross the railway, this principle imposes on the company the legal obligation to observe a higher degree of skill and care than would be exacted in the management of the ancient, more simple and less dangerous modes of conveyance. And this again must be varied by other circumstances, such as the place where the train is moved, and the degree of risk and danger of injury to others.

This Court has had before it recently several cases in which it was necessary to express our judgment upon the degree or measure of diligence required by the law in such cases.

In the case of the Baltimore & Ohio Rail Road Co. vs. *387 Worthington, 21 Md. Rep., 275 , where a passenger sued to recover damages resulting from an accident to the train in which he was riding, it was held, that in order to exempt the defendant from liability it was bound “to exercise the utmost care and diligence which human prudence and foresight could employP Or in other words, the legal duty growing out of the undertaking of the defendant, as a carrier of passengers, imposed on it the highest degree of diligence and care, and for a failure or omission to perform this duty, in any particular, the defendant was responsible.

At the last term, the cases of The State, use of Coughlan, and Patrick Bannon, by his next friend, vs. The Balto. & Ohio R. R. Co., came before us for decision; those W'ere cases like this, where injury had been inflicted by a railroad train, not upon passengers in the cars, but persons in no way connected with the railroad company, while passing over or upon the railway, and a distinction was drawn between cases of that kind and the case of a passenger upon the train, growing out of the difference in the obligation and duty of the railroad company in the two cases.

The reasoning of Judge Willard, who delivered the opinion of the Supreme Court of New York, in Brand vs. The Troy and Schenectady R. R. Co., 8 Barbour, 576, was quoted with approbation as shewing the true grounds upon which this distinction rests, and as correctly defining the nature and extent of the duty imposed by law upon the defendant in a case like the present. In the argument of this cause we have been asked to review and modify the decisions pronounced at the last term. But upon more mature reflection, aided by the argument of this case, and the authorities cited, we are of opinion that the distinction taken in 8 Barbour, and heretofore sanctioned by this Court, is just and reasonable, and based upon sound principles, notwithstanding it seems to have been questioned in one of the later cases in New *388 York. See Johnson vs. The Hudson R. R. Co., (in the Superior Court,) 6 Duer, 641, 642 .

The obligation of a railroad company for the safe transportation of a passenger, is one arising from contract imposing duties growing out of the relation between the parties, involving trust and confidence, and requiring the exercise of the utmost diligence and care, while towards a stranger no such relation exists, each party being in the lawful pursuit of his own business, or the lawful exercise of his own rights, is not bound by the same rigorous rule, but is required to exercise such reasonable care to avoid injuring the other as ordinary prudence would suggest; of course the amount or degree of care which this rule requires must vary according to circumstances, and sho uld be 'commensurate with the risk or danger of inflicting injury upon others.

Or, as very happily defined by Judge Sutherland, (24 H. IT., 187,) “that care and attention which experience has found reasonable and necessary to prevent injury to others in like cases.”

In this case the instruction given to the jury, by the Court below, is almost identical with that in the cases of Coughlan and Bannon, to which we have referred, requiring the defendant “to exercise the utmost care and diligence which they had the means and power to employ, having regard to the business in which they were engaged.” This rule, as we have heretofore decided, is too rigorous, and imposed upon the railroad company more than is required in such cases, and for that reason the judgment must be reversed and the case sent back for a new trial.

"We think there was no error in the other rulings of the Superior Court. The propositions contained in the second and third prayers of the defendant have already received the sanction of this Court in the case of Bannon vs. The Balto. & O. R. R. Co., before referred to, and properly an *389 nouneed the law in this case, both as to the question of diligence on the part of the plaintiff and the true measure of damages. The first prayer of the defendant was, 'in our opinion, properly rejected, because it altogether ignores or omits to notice some material .facts which were" proper for the consideration of the jury in passing upon the question of negligence, such as the observance, by the defendant’s agents, of the precautionary measures prescribed by the city ordinances ; and also the having such a complement of men in the management of the train as reasonable care and prudence might, in the opinion of the jury, have required under the circumstances.

(Decided July 11th 1866.)

Judgment reversed, and procedendo ordered.