Baltimore & Ohio Railroad v. State ex rel. Trainor

Maulsby, J.,

delivered the opinion of the Court.

Mitch of the law applicable to this case is well settled, and is stated with clearness and precision in Northern Central Railway Co. vs. State, use of Price, 29 Md., 421 , thus, “if the negligence of the defendant was the proximate, and that of the deceased the remote, cause of the injury, the action is maintainable, notwithstanding the deceased may not have been entirely without fault.”

Tested by this rule we can perceive no error in the plaintiffs’ first and second prayers which were granted by the Court below. It is objected by the appellant to the first prayer, that it admits that there may have been mutual or concurrent negligence, and that it leaves to the jury to exactly ascertain how much each party contributed, by his negligence, to the production of the injury, in which case it would be impossible to apportion the damages, and that it is therefore obnoxious to the rule announced in Northern Central Railway Co. vs. State, use of Geis, et al., 31 Md., 357 . In that case the rule invoked by the'appellant is stated to be that an action will not lie where the negligence imputable to both parties was concurrent, and co-operated to produce the injury complained of. There can be no difficulty in distinguishing between negligence of both parties immediately concurring to, and co-operating in, the production of the injury, and the proposition of the prayer that if the killing resulted from the want of ordinary care of the defendant, and not from tiro want of ordinary care of the deceased, directly contributing to the injury, the action lies. The second prayer contains, substantially, the same legal proposition with the first, and the appellant’s objection is substantially the same. It is argued that if the deceased walked on the track, and his walking on the track was want of ordinary care, and the accident would not have happened if he had not walked on the track, then such walking was the proximate cause of the accident, and the plaintiff cannot recover. This argument does not justly apply the rule in 29 Md., 421 . By “proxi *554 mate cause ” is intended an act which directly produced, or concurred directly in producing, the injury. By “remote cause ” is intended that which may have happened, and yet no injury have occurred, notwithstanding that no injury could have occurred, if it had not happened. No man would ever have been killed on a railway, if he had never gone on or near the track. But if a man does, imprudently and incautiously, go on a rail road track, and is killed or injured by a train of cars, the company is responsible, unless it has used reasonable care and caution to avert it, provided the circumstances were not such when the party went on the track as to threaten direct injury, and provided that being on the track ho did nothing, positive or negative, to contribute to the immediate injury. Any attempt to make plainer the rule laid down in the case referred to, than it is made by the language of the Judge who delivered the opinion, is more likely to obscure than to illustrate it.

Nor can we appreciate the force of the appellant’s objection to the plaintiff’s third prayer. It is, that instead of allowing the jury, in estimating damages, to consider the probability of life of the widow of deceased, it ought to have limited them to a consideration of the probable continuation of her widowhood, and that they should have been required to measure the period when, in their opinion, she would marry again, "and allow damages to that period only.

Such a contingency this Court cannot recognize as a fit element to enter into a verdict in such a case. We think that the prayers of the appellee were properly granted.

The first, second and sixth prayers of the appellant are based on the hypothesis that the deceased was an employee of the appellant at the time of the injury which resulted in his -death. The propositions contained in these prayers could arise only on the idea that he was in the course of discharging the duties of his employment when the injury occurred. The proof on both sides is that he was not, at the time of the injury, so occupied, but that his duties to *555 his employer having been discharged, he was on his way to his home. His employment was as a spiker, and his duty was to go over the track twice a day from the four mile house to the nine mile stone, to see that it was in order. At six o’clock in the evening his duty ended, to be resumed the next morning, unless discharged in the meantime. When the injury occurred, he was not on the track between the four mile house and the nine mile stone, but had finished his day’s work, laid aside his tools, and was proceeding along, or on the track of, the Washington Branch road, towards his home on the opposite side of the Pafapsco river. This being the undisputed evidence on this subject, it is unnecessary that we shall consider these prayers further than to say there is no proof to sustain them, and therefore they are abstractions in this case, and for this reason were properly rejected.

The third and seventh prayers of appellant present substantially the same question, that if the deceased was at the entrance of the viaduct, in the language of the third, or at or near the viaduct with purpose to walk over the same, or was on the rail road track near said viaduct, and walking thereon, and not at a public crossing of the same, in the language of the seventh, when the injury occurred, and that the appellant had given public notice, set up at the viaduct, warning persons not to cross it, and that the injury was the result of accident, and not wanton, then the plaintiff is not entitled to recover. These prayers were rejected as offered, but granted with additions putting it to the jury to find that the defendant was using ordinary care, and that by the use of ordinary care it could not avoid the injury.

There are no circumstances under which the defendant could be relieved of the duty of using ordinary care. What constitutes ordinary care may vary with varying circumstances, but, as a general rule, it is for the jury to determine, and we discover nothing to relieve this case from the operation of the general rule. The proposition of the prayers *556 as offered, is that the public notice or warning, set up at the viaduct, is a bar to recovery, and relieves the defendant from the use of ordinary care on and about the viaduct, and from liability for any injury that might occur, at .or on the viaduct, from the want of ordinary care on its part.

That proposition is not sound. The notice or warning was proper to be considered in determining the question of care, but was not, in itself, a fact which dispensed with the necessity of using care. An illustration can be found in the fifth and eighteenth rules or regulations of the appellant for the conduct of its trains. The fifth rule requires the passenger engineman, on his approach to all bridges (amongst other things) to sound his whistle clearly and distinctly, and cause his fireman to ring the bell. There may be other purposes in this requirement, but manifestly one purpose is to give warning to persons who may, however improperly, be on a bridge. The eighteenth rule requires the enginemen, while running trains, to keep a sharp lookout for cattle and live stock on the way, and on observing any on or about the track, to reduce speed, and use great care to avoid injuring them. It would be great injustice to the appellant to construe its regulations as intending to evidence greater tenderness towards cattle and other live stock, than towards human life or limb. These rules manifest the sense of the appellant as to what constitutes proper care, and the standard, which it thus establishes for itself, is correct. If they could be construed as establishing a rale of care and caution, solely for the protection of its own property and interests, which however is forbidden by the language of the eighteenth rule, still others are entitled to the benefit of the same rule. That which constitutes ordinary care for its own interests, constitutes it as well for others. And as the setting up a notice or warning, according to the appellant’s own estimate, is not sufficient care to relieve it from other acts of care, in addition, as sounding the “ whistle-clearly and distinctly,” and causing the “fireman to ring the bell” on approaching a bridge, there *557 could be no propriety in relieving it from the duty of observing its own rule of care, which was the effect of the prayers. The third and seventh prayers were properly rejected, without the additions of the Court, and they, properly construed, and as now corrected by the agreement to amend, presented the law correctly. The appellant was not injured by them.

The fourth prayer was erroneous in that, it failed to require the supposed contribution by the deceased to bring the injury on himself, by his own negligence and want of proper care, to be found to be the proximate cause of the injury. If the hypothetical negligence of the deceased were the remote cause of the injury, and the negligence of the appellant the proximate cause, the former did not bar the right to recover.

The addition of the Court substantially met this proposition, but without the addition the prayer ought to have been rejected, and with the addition it could operate no injury to the appellant.

The fifth prayer Avas based on the proposition that the only duty incumbent on the appellant, in the use of ordinary care, Avas to give the usual signal, that its train was bound upon the Washington branch of its road, by sounding the whistle before reaching the relay station. The proof of the appellant is that the cattle guard at the entrance on the viaduct, or bridge, at or near Avhich the injury occurred, is eighteen hundred and eighty-four feet distant from the SAvitches. That the Avhistle Avas sounded, according to one witness, (Burton,) about six hundred yards east of the switches, the injury having occurred in the opposite direction, and by the other (Palmer) about íavo hundred yards. Both these witnesses, one of whom was the conductor, and the other Avas the engineman, prove that the whistle Avas not sounded, nor the bell rung on the approach of the train to the viaduct. The injury occurred at or within a few feet of the entrance on the viaduct. There was testimony that it Avas usual for all passenger trains to bloAV the whistle betAveen the switches and the viaduct. The fifth rule required not,only that to be done, *558 but also the bell to be rung. The prayer asserted that a much less degree of care was sufficient. This statement of the proof sufficiently demonstrates the error of the prayer. Without regard to the addition made by the Court, it was properly rejected, but that stated the law as favorably to the appellant as it had a right to require.

(Decided 26th January, 1871.)

Judgment affirmed.