Baltimore & Ohio Railroad v. State ex rel. Fryer

Alyey, J.,

delivered the opinion of the Court.

The objection taken to the plaintiff’s prayer, which was granted, is not in our opinion, well founded. If, by the exercise of such care and caution as ought, under all the circumstances, to have been reasonably expected from one of the age and intelligence of the deceased, in connection with ordinary care and caution on the part of the father, and the person accompanying the child at the time the accident occurred, the consequences of the defendant’s negligence and want of care could not have been avoided, then clearly there is no ground of excuse. The prayer required the jury to find, that the death resulted from the want of ordinary care and caution on the part of the defendant; and, as the jury have found that the defendant was guilty of the want of such ordinary care and caution in the use of its car, whereby the injury occurred, the most that could be claimed in exoneration from liability was, that the child should have used such care as might reasonably have been expected of her, under the circumstances, and that the parent or person entrusted with the care of the .child at the time, should not, by their negligence, have directly contributed to produce the result-complained of. To make the right of recovery depend upon, any greater amount or degree of diligence, would, in cases like the present, be virtually a denial of the right altogether. We think, therefore, the plaintiff’s prayer, granted as an instruction, was unexceptionable, and that the law was thereby as favorably expounded to the jury as could rightfully be insisted upon by the defendant.

The defendant offered three prayers, all of which were refused by the Court below.

By the first of these prayers the rule of diligence and care required of the defendant, in order to exonerate it from responsibility, is very correctly stated; but the prayer is objectionable in that part of it, whereby the Court was asked to instruct the jury that the plaintiff could not recover, if they should find that the party killed brought her death upon *52 herself; and that the act of the child should be regarded as • the act of an adult, and without any reference whatever to her infancy. In other words, the degree of diligence required of the child of five years of age, was sought to be made the same as that required of an adult of mature judgment and discretion. This, as a principle of justice, we cannot approve.

The defendant in not exercising the degree of care that was reasonable and proper, under the circumstances, rendered itself liable for the consequences of its unjustifiable conduct; and it is no hardship that the victim of its negligence should not, contrary to nature, be held to the exercise of a degree of judgment and discretion, in avoiding the accident, that is possessed alone by adults. The defendant is not sought to be held to a greater degree of caution and diligence than in the case of an adult suffering injury; but the force and effect of the defensive circumstances connected with and growing out of the conduct of the party injured, must, in the nature of things, depend much upon the age and condition of such party. The deceased, it is true, was bound to use ordinary and reasonable care to avoid the consequences of the defendant’s negligence, as a condition upon which this action could be maintained; but these terms are relative and dependent, and whether such reasonable and proper care was used on the part of the deceased, can only be determined by considering her age and capacity. Ordinary and reasonable care, under the circumstances, is that degree of care alone that we might reasonably expect from one in the situation and condition of the deceased; and as she was a child of but five years of age, the degree of intelligence which she was capable of exerting for her rescue from danger, we may suppose to be very small. This, however, should not relieve the defendant of its liability for the consequences of its wrongful act.

It is certainly true, that in actions under the statute, like the present, or in other cases where parties sue for personal injuries suffered by others than themselves, no recovery can b.e had, if the party entitled to the action be guilty of negli *53 gence or the want of care, whereby the injury occurred. To allow recovery in such cases would be to allow parties to take advantage of their own wrongful or negligent conduct. And in the case of an action, like this, brought for the injury occasioned by the death of a child, the negligence of the parent, or other person having the legal control of the child at the time, Avoulcl be so far imputed to the latter, as to form a defence to the action. This should obviously be so, both upon principle and the policy of the law; for otherwise parties might be allowed to take advantage of their own neglect, or that of others, under circumstances where negligence and want of care would be most culpable. Such, however, is not the proposition made by the defendant’s first prayer. But, by the plaintiff’s prayer, which was granted, the question of the negligence of both the father and the grand-father, who at the time, had the care of the child, was submitted to the jury, and the absence of such negligence on their part made the condition upon which the verdict could be found for the plaintiff. This was all that could be required by the defendant, and as much as any well decided case has ever exacted of a plaintiff to entitle him to recover. Therefore, the refusal of the Court below to grant the first prayer of the defendant, was, in our opinion, clearly right; and we fail to discover any such inconsistency of such ruling with the cases of The State, use of Coughlan vs. Baltimore and Ohio R. R. Co., 24 Md., 84 , and Bannon vs. Baltimore and Ohio R. R. Co., 24 Md., 108 , as is supposed to exist. On the contrary, we think there is entire consistency.

As to the second prayer of the defendant, this Court has so frequently, and so recently, had occasion to consider the question presented by it, that we do not deem it proper or necessary to do more than to say, that the question was one for the jury, to be passed upon as matter of fact, upon view of all the circumstances of the case. It would not have been consistent with the rulings of this Court, if the Court below had assumed, under the circumstances of the case, the decision of *54 the question of negligence on the part of the deceased, as a question of law. See case of Northern Central R. R. Co. vs. The State, use of Price, et al., 29 Md., 420 . The second prayer of the defendant was therefore properly rejected.

(Decided 13th January, 1869.)

And as to the third prayer of the defendant, we think the Court below was right in rejecting that also. The law, in reference to the measure of damages, was correctly stated, as applicable to this case, in the fourth prayer of the defendant, and which, being conceded.by the plaintiff, was granted by the Court. That the Court should have instructed the jury, that, if they found for the plaintiff, it should only be nominal damages, is a proposition to which we cannot yield assent, in a case like this. And the case of Lehman vs. The City of Brooklyn, 29 Barb., 234 , relied on by the defendant in support of the proposition made by the prayer, would seem to be neither consistent with reason, nor with other decided cases, entitled to greater consideration.

There was a question suggested, as to whether the prayers of the defendant are properly examinable by this Court, inasmuch as the bill of exception, bringing them before us, does not contain the evidence upon which they were based, and does not, by express terms, make sufficient reference to the preceding bill of exception, to justify this Court in referring to the evidence to see whether the prayers are not mere abstractions.

This objection, we think, rather more technical than substantial. We cannot fail to perceive that the bill of exception, to the refusal to grant the defendant’s prayers was second in the course of the trial, and that it was taken after all the evidence had closed; and the terms, with which this second exception commences, “ whereupon,” &c., sufficiently refer to what had preceded it, to authorize resort to the first bill of exception to ascertain from the evidence whether the prayers refused were or not abstractions.

Being of opinion that the Court below committed no error in its rulings, wo must affirm its judgment.

Judgment affirmed•