Baltimore & Ohio Railroad v. State

Miller, J.,

delivered the opinion of the Court.

Charles Woodward, a conductor of a freight train, had his leg crushed by a collision. The accident occurred on the appellant’s road, at a point about one mile and a-half east of the Point of Rocks, and about four o’clock on the night of the 24th of September, 1869. His train was the second in a convoy of four going west, and was run into by the third and following train. The collision was slight, not displacing any of the cars from the track, and but little delay occurred in the movement of the trains. As soon as practicable, after the accident, he was placed on the tender of the nearest engine and carried to the Point of Rocks, accompanied and attended by Stoddard, the con *287 ductor of another train, and his friend, who stopped with him at that station. As soon as he arrived there, the company's agent was aroused, his leg hound up with twine to stop the bleeding, a mattress procured, on which he was taken to a hotel, and stimulants administered to him. A messenger was immediately dispatched for the nearest physician, who came soon after, took off the twine, put on what is called a field tourniquet, bandaged the leg, and placed a hoard under it to keep it in position. At this time he had hied freely, and his pulse was feeble, hut he subsequently rallied, and tbe physician stated he was in a fair way to recover, when be was put upon the next eastern bound passenger train to be taken to Frederick City, a distance of thirteen and a-half miles, where bis relations and friends lived. This train arrived at the Point of Rocks sometime after seven o’clock of the same morning. He was placed in the baggage car, and the same party who. had remained with him attended him on the transit to Frederick, where he arrived in about two hours. On his arrival he was in a dying condition from hemorrhage which occurred during the passage, and died shortly thereafter. This brief statement of the undisputed facts attending and following the accident, suffices for an understanding of the two distinct theories upon which the case appears to have been tried in the Circuit Court. These are: '

1st. That there was such negligence on the part of the company as to make them responsible, upon the assumption that the injury received by the collision was fatal and the immediate cause of the death.

2nd. Assuming the injury was not in its nature fatal, and that the proximate cause of the death was the subsequent hemorrhage occuring during the transportation to Frederick, still the company is responsible, if such hemorrhage occurred by reason of the gross neglect of their agents or employes in charge, of him during this transportation. v

*288 No embarrassing question arises as to the law governing the first ground upon which a recovery is sought. At the time of the collision the deceased was an employé of the company and in discharge of his duty as such. What' is essential to make the employer responsible in such cases has been settled by the decisions of this Court. O’ Connell’s Case, 20 Md., 212 ; Wonder’s Case, 32 Md., 411 . The whole difficulty grows out of what occurred subsequently to the collision. What duty and obligation does the law cast upon the company as to the care and treatment of a party thus injured? It is contended that the rule in Price’s Case, 29 Md., 420 , answers this question, and extends not only to the taking of the injured man to the Point of Rocks, and putting him in the care of a physician there, but also to the carrying of him to Frederick and placing him in charge of his friends in that city. The case of Price was that of a stranger to the company, who while crossing or on the track, near a station, was struck by the engine of a passing passenger train going at rapid speed, and carried upon the pilot for some distance before the train could be stopped. When found he was taken .from the pilot apparently dead, though showing no external wound to justify the conclusion that life was in fact extinct. Without notice to his family or to any one who would take an interest in him, or sending for a-physician to ascertain his condition, he was taken by those in charge of the train into a warehouse at the station, (a place used by the company to deposit old barrels and other 'rubbish,) and there laid upon a plank across some barrels and locked up alone all night. The next morning it was found he had, during the night, revived from his stunned condition, and moved some paces from the sj>ot where he had been laid, and that he had died from hemorrhage of the arteries .of his right leg which was crushed at and above the knee. It had been proposed to place him in the company's telegraph office which was a comfort *289 able building, but tlio operator objected and directed him to be taken into this warehouse. In that state of case, we said that when the injured man was found upon the pilot of the defendant’s engine in a helpless and insensible condition, “it, at once, became the duty of the agents in charge of the train to remove him, and to do it with a proper regard to his safety and the laws of humanity. And if in removing aiid locking up the unfortunate man, though apparently dead, negligence was committed whereby the death was caused, there is no principle of reason or justice upon which the defendant can be exonerated from liability. To contend that the agents were not acting in the course of their employment in so removing and disposing of the party, is to contend that the duty of the defendant- extended no further than to have cast off by the wayside the helpless and apparently dead man, without taking care to ascertain whether lie was dead or alive, or if alive whether his life could be saved by reasonable assistance timely rendered. For such a rule of restricted responsibility no authority has been produced, and we apprehend none can be found.” How we are of opinion that the rule of duty and responsibility thus laid down does apply to the present case, but that it extends only to the treatment of the deceased from the time of the accident until he reached the Point of Rocks, and what was there immediately done with and for him. But looking to the undisputed evidence in the record, we find the very opposite of what was done with Price, was done here. Woodward was not cast off by the wayside, at the place of the accident, and there left alone to bleed to death, nor thrown upon the platform of the station and there left to seek relief by himself as best he could. On the contrary, he was carried as speedily and safely as the circumstances would permit, to the nearest station, a place where it was most likely assistance could be most readily obtained, and when the station was reached the company’s agents *290 took him in charge, did everything for his comfort they reasonably could,'and used every precaution to sto'p the bleeding of his wounds and to save his life, that would naturally occur to unprofessional men of common information and experience. In the words of one of the witnesses, “we did the best we could to save him.” They also sent immediately for a physician who arrived in a short time and took charge of him. Up to this time it is clear that everything that a “proper regard for his safety, and the laws of humanity,” required was done in his behalf, and here, in our opinion, the company’s duty and responsibility under the rule in Price’s Case ceased. When he was thus attended to, and placed at a hotel in charge of a physician, no further responsibility under that rule, as to his care and treatment, rested upon the company. If they afterwards incurred any liability on account of negligence while carrying him to Frederick, it must be on other grounds and under a different principle of law. In our judgment, it is quite clear that at the time this transportation commenced, he could not be regarded as an employe of the company. Then, if not before, that relation was either suspended or had wholly ceased. By one of the company’s rules, prescribing in this particular a lawful condition of his employment, he had no right to claim compensation from the company “when disabled by sickness or other cause,” and any allowance they might make to him in such case was to be “ as a gratuity only.” He, therefore, in relation to this transportation occupied the position of a stranger to the company, in like condition. They were not bound to carry him gratuitously, nor to procure a physician or any one to accompany and attend to him on the way. The law imposes' no obligation on railroad companies or other carriers of passengers, to furnish physicians, nurses, or other attendants for sick or disabled persons who may choose to travel in their conveyances. The duty to carry safely is no greater with respect *291 to them than with respect to those who are sound and in good health. Care and attendance of this character must be provided by the traveller at his own cost and risk. As to the correctness of these propositions there can, we think, be no doubt. But it is argued that whether they were under any obligation to carry him to Frederick or not, ’yet, having undertaken to properly attend to him until he ¡could be delivered to his friends in that city, the company :is liable for the consequences which would have been averted, but for the gross default or neglect of their agents and employes in carrying out that undertaking, upon the principle that if a party undertakes to perform an act in regard to which he was under no duty to do anything,

; and injury or loss results from the grossly negligent or f improper manner in which he performs it, he is liable. We understand this argument to assume (as it must, to be of any avail in the present case) that if the jury find that the company, through some agent having authority to bind them to such an undertaking, undertook not only to carry Woodward from the Point of Rocks to Frederick free of charge, but also to provide an attenddnt to take care of him and carry out the physician’s instructions in regard to his treatment while on the way, then the company is liable if his death was caused by the gross negligence or want of ordinary care on the part of such attendant. So understood, the argument places the liability upon the law of bailments, and the case of Coggs vs. Bernard and other authorities defining the duties and responsibilities of mandatories are cited in its support. This is certainly the only possible ground on which the company could be made liable, and whether it can be applied to the present cause and action may admit of grave doubt. Certain it is, that this is a question of great importance, and is attended with such difficulty, that no opinion upon it ought to be expressed by this Court unless it is clearly and directly presented for our determination, so that it can *292 be finally settled. But there is not a single exception or ruling’ in this record that thus presents it, and what, we might say about it could be justly treated as mere obiter dicta. For this reason we deem it our duty to refrain from expressing any opinion upon the subject.

Having thus stated our views of the law governing the main features of the case as the record presents it, we must now dispose of the numerous exceptions taken at the trial. As the judgment must be reversed for errors in some of the rulings against the appellant, it is made our duty under a provision of the Local Laws, (2 Code, Art. 11, sec. 41,) to decide the exceptions taken by the appellee as well as those taken by the appellant.

In the appellee’s first and second exceptions, the Court refused to allow the plaintiff to ask the witness, Thompson, the engineman of train No. 8, which caused the collision, whether he was ever before suspended by the company on the charge of negligence, and if yea, when? and whether his train ever ran into any other train, and if so, when, and where? In the appellant’s first, second, and third exceptions,* the same witness was asked by the plaintiff, whether, while in the service of the company, he was present in any accident in which his train caused loss of life, limb, or property, and if yea, when, where, and how often? And having stated he was off duty on one other occasion, he was asked “what for?” and further to state all the accidents in which his train was in any way connected, of which the company had knowledge. The plaintiff proposed to follow this up by showing that in the instances the witness might mention,.there was negligence on his part which was brought to the knowledge of the company prior to the happening of the present accident. The Court allowed these questions to be put and answered. There may be, as was argued at bar, an inconsistency between these two sets of rulings. But this becomes immaterial in view of the testimony which the witness gave. He *293 testified in the progress of the cause, that he had heen in the service of the company for very many years, first wiping off engines, then helping to repair them, then as fireman for five or six years, and that he was then promoted to miming an engine, which he commenced to do about twelve years ago, and has ever since been so engaged ; that on one occasion, a long time ago, a fireman fell off his train and was killed, and, with that exception, there was no other accident prior to this, causing loss of life, limb, or property, in which his train was in anyway connected; that on one occasion, also a long time ago, he was suspended for two weeks, because he failed to look at the list of engines put up at Mt. Clare, and this he explained by saying we were then riming irregularly, and it was hard to tell when we were to go out, that he thought he, was not to go on the day he was required and was out of town. All this testimony went to the jury, and it is clear no injury was done to either party by the rulings in question ; none to the plaintiff, because the questions of her counsel wore fully answered, and none to the company, because the testimony given was altogether in their favor. Errors, if any, in these rulings, are consequently of no importance and furnish no ground of reversal. We have, however, heen urged to decide the question presented by them, that is, whether it is competent in order to show 'that the company did not exercise due care in the employment or retention in their service of careful and skilful employes, to prove specific acts of negligence in one of them brought to their knowledge and his subsequent retention in their employment, or whether proof of general character only is admissible for that purpose? But there was no offer to prove by any other witness in opposition to the testimony of Thompson, that he had ever before committed any act of negligence in the running of his engine, and we have no assurance that «any such proof can hereafter he procured. It appears, therefore, we are asked to decide a *294 mere abstract moot question, and we cannot step out of tbe line of duty to do that.

In the appellee’s third exception the Court refused to permit the plaintiff to ask a witness “ if the time between the trains had been ten instead of five minutes, by the regulations of the company, is it as probable, that the accident would have occurred?” We do not perceive what relevancy an affirmative answer to this question would have had to the case. The true question is not what would have been probable if a different regulation as to time had been prescribed, but whether the actual regulation of an interval of five minutes at the schedule speed was a reasonable regulation with respect to tbe safety of the employes' in charge of the trains. As to this no testimony was given or offered, and the jury could not be allowed, without any testimony of witnesses competent to speak on the subject, to take the time-tables and regulations, and pass their judgment on this question. If it depends on the construction and effect of these alone, it should be determined by the Court, and with regard to it we think there is no difficulty. According to the schedule speed on this part of the road, an ’interval of five minutes would keep the trains fully one mile apart. This, with the other rules respecting the use of lights and other signals and precautions, and prescribing the duty of employes in almost every emergency, would, if observed by them, render the occurrence of such accidents as this almost impossible. It certainly cannot be said that the time-tables in connection with such regulations, were not arranged by the company with such reasonable care and caution as to be consistent with a reasonable regard to the safety and well being of their employes. The rulings in this exception, and in the rejection of the appellee’s second prayer on the same subject were correct. In this connection it has been argued that the time-tables require each of the trains running in convoys, to arrive at stations at the same time, and therefore, *295 necessarily require them to approach close to each other when coming to stations. But this we think, is a misapprehension of the true construction and effect of the time-tables in connection with the five-minute rule. The former fix the time for the arrival or departure of the foremost train, while the latter governs the running of the other trains throughout, as well upon approaching and leaving stations, as on other parts of the road. The testimony shows it was so understood and required to be practiced by the employés on such trains. The case is therefore quite different from that of Wright vs. New York Central Railroad Co., 28 Barb., 80 , where the time-tables permitted trains approaching a station from opposite direc tions, and on the same track, to reach the station at the same moment.

In the appellee’s fourth exception the Court refused to allow the plaintiff to ask the witness, Thompson, for the purpose of laying the foundation for impeaching him, whether he had not made a certain statement to another party different from what he had testified to when under examination by the defendant. This witness had been called by the plaintiff in the first instance and had given testimony as to when, where, and how the collision had occurred, and as to other matters connected with the accident. In this state of case we are of opinion it was not competent for the plaintiff at any stage of the trial, or of his examination to impeach the credibility of this witness. The general rule on this subject, with the exceptions to It, is very clearly stated in 1 Greenleaf’s Evidence, secs. 442, 443, 444. We refer also to Queen vs. The State, 5 H. & J., 232, and Franklin Bank vs. Steam Navigation Co., 11 G. & J., 36 , where questions very similar to the one before us have been decided by our predecessors. There was no error in this ruling.

In the appellant’s fourth, fifth, sixth and seventh exceptions, the Court overruled the defendant’s objections to the *296 admissibility of certain evidence, and permitted it to go to the jury. In the fourth, fifth and sixth, several physicians were asked their medical opinions as to the prudence of removing a man injured as Woodward was, from the Point of Rocks to Frederick, and they testified it would have been better to have kept him quiet at the former place, and' if he had been their patient they would have insisted on his remaining there and not have permitted his removal.

In the seventh, one of the same witnesses was asked, upon a hypothetical statement of the case, to what cause he would have attributed Woodward’s dying condition when he reached Frederick, and he said to the neglect, inattention, or ignorance of the persons in charge of him. The objection now made to the admissibility of all this testimony, is that there is no averment in the declaration, nor specification in the “ particular ” of the claim furnished under the 3rd section of Art. 65 of the Oode, which would authorize its admission. We are of opinion, this objection, so far.at least, as the testimony in the seventh exception is concerned, is well taken. This testimony supports the second branch or theory of the case. Its object was to charge the company with negligence in the carrying of Woodward to Frederick, and to show that that negligence was the cause of his death. By a fair reading of the declaration it charges simply that Woodward, while lawfully on one of their cars, was hilled through the wrongful act, neglect and default of the defendant, and the “ particular ” of the- claim furnished under the statute, has no broader scope. Instates that Woodward, while lawfully on one of the defendant’s cars as conductor of a freight train, was, by reason of the wrongful act, neglect, and default of the defendant “ struck and injured by a locomotive engine of the defendant, and in consequence of being so struck and injured afterward ” on the same day “ died.” They both aver that the death was the necessary result of the injury, and make no claim that the subsequent negligence in the *297 transportation to Frederick, was the proximate cause of it. The section of the Code referred to requires the equitable plaintiff, together with his declaration, to deliver to the defendant or his attorney, a “ full particular of the nature of the claim, in respect of which, damages shall be sought to be recovered.” When furnished, its office and effect is, like that of a bill of particulars in other cases, to restrict the plaintiff’s proof, and limit his recovery to the claim as therein stated. Hall vs. Sewell, 9 Gill, 155 ; Scott vs. Leary, 34 Md., 400 . It follows that in order to admit the testimony objected to, there must be an amendment of the declaration and “ particular ” of claim. But it is said, no such point was made or decided in the Court below, and therefore, this Court cannot entertain this objection. The Act of 1825, ch. 117, embodied in the Code, (and in this particular it has not been changed by subsequent legislation,) provides, that “the Court of Appeals shall in no case decide any point which does not a,ppear by the record, to have been tried and decided by the Court below.” Among the numerous instances in which that Act has been construed by the Appellate Court, it has been frequently held that where an objection is raised to the admissibility of evidence offered generally in a trial before a jury, the attention of the Court is necessarily called to the pleadings in the cause, as the admissibility of the evidence is entirely dependent on them, and the Court cannot judge of its pertinence or materiality, but by reference to them. When the record shows such an objection was made and. overruled or sustained by the Court below, this Court must assume the testimony was admitted or rejected by that Court, because it was pertinent and relevant, or otherwise to the issue made by the pleadings. In such case, it necessarily appears by the record that the point was decided by the Court which tried the cause. The distinction between such an objection and that of prayers or instructions to the jury which make no reference to the pleadings, is very clearly *298 stated in the case of Leopard vs. Canal Company, 1 Gill, 222 . Counsel for the appellee have also argued that no harm was done hy admitting the testimony in the fourth, fifth and sixth of these exceptions, because it was not sought to hold the company responsible for the imprudence of removing Woodward, and no claim is made for damages on that account. We agree the company could not be made liable for such imprudence, nor for any mistaken opinion on that subject by the medical attendant at the Point of Rocks, who may have advised or consented to such removal. But then the testimony becomes wholly irrelevant, and for that reason was improperly .admitted. We are therefore of opinion there was error in each of these exceptions.

. By the custom and regulations of the company, trains in convoy were equipped, each with one engineman, one fireman, one conductor, and one brakeman. If Woodward had knowledge of this cxrstom and practice at the time of his employment and afterwards,, and with such knowledge, continued for eight or nine months in his employment as conductor on trains in convoys thus equipped, and also knew that Thompson’s train following his on the night of the collision was equipped in the same manner, then such knowledge on his part would prevent a recovery in this action, on account of any supposed deficiency in equipment in this respect. Hence the Court was right in rejecting the appellee’s first, and in granting the appellant’s ninth prayer, which refer to that subject.

There was no error in granting the appellant’s first prayer. It correctly states what was essential in order to fasten liability upon the common employer. The appellant’s second prayer, as we understand it, is, and must be confined to the first theory of the case. It asserts in effect, that if the jury find that Woodward died from the injury he received hy the collision, (that is, if they find such injury was fatal,) and was occasioned by the negligence of the engine- *299 man of the following train, then their verdict must be for the defendant, because the plaintiff has offered no evidence that the defendant did not exercise all reasonable care in the selection of its servants, or in procuring for its operations faithful and competent employes. After a careful examination of all the evidence in the record, we find none legally sufficient to authorize the jury'" to find a verdict against the company on the first branch of the case. There was consequently no error in granting this instruction, nor in rejecting the appellee's third and fourth prayers. Besides this, each of the appellee’s first four prayers assert the right to recover upon the hypotheses of facts therein stated, without reference to the question of contributory negligence on the part of Woodward (a most important element of the case in view of the testimony on that subject,) and for this reason were all properly rejected. Again, if there was negligence on the part of Woodward, it must, from the nature of the accident have concurred and co-operated in producing the injury, and in that case the law will not permit an apportionment of negligence. Northern Central Railway Co. vs. State, use of Geis, 31 Md., 357 . For this reason, if there were no other objection to it, the appellee’s fifth prayer was rightly refused.

The appellee’s sixth and seventh prayers are disposed of by what we have already said. The sixth is in the exact terms of one of the instructions approved in Price’s Case , and the seventh adopts the language of the Court in that decision. Each of them applies the rule -in that case to this without restriction. It in effect, instructs the jury, that it was the duty of the company’s agents and servants under the rule there announced, to take charge of, and carry the injured man, not only to the Point of Rocks, but from thence to Frederick city. We have expressed our views on that subject, and for the reasons stated there was error in granting these prayers and none in rejecting the *300 appellee’s ninth and the appellant’s third prayer. This latter prayer also erroneously assumes that the relation of employer and employé continued during the transportation to Frederick.

The appellant’s fourth prayer is very nearly correct. The only objection to it is, that it does not put to the jury with sufficient point and distinctness to find that Stoddard accompanied and attended Woodward at the latter’s request, or was allowed to g'o and take care of him because of such request. If the company’s agents, at his request carried or permitted Woodward to be carried on this train to Frederick free of charge, or acceded to such request from motives of kindness, or because he had been injured while in the company’s employment, and also permitted Stoddard to accompany him, and attend to him, because Woodward had requested him as his friend to do so, it is quite clear the company could not he held responsible for Stoddard’s negligence, for in that case he was Woodward’s own attendant, and not the company’s servant. Modified as indicated, this prayer would announce a correct legal proposition.

The appellee’s eighth prayer, which was granted, correctly states the measure of damages. The appellant’s fifth, sixth, seventh and eighth prayers were rightly refused. Each, of them asserts that certain acts and conduct of Woodward amounted in law to contributory negligence. This is not, in our opinion, a case in which the Court would be justified in interfering in this way, but one in which the question of such negligence should be left to the finding of the jury, upon all the facts and circumstances in evidence before them. Besides, as we have decided that the plaintiff has failed to prove any negligence on the part of the company warranting a recovery on the first theory of the case, any instruction upon this dependent and subordinate defense of contributory negligence on the part of the deceased, would have been entirely *301 unnecessary, if not inconsistent with, the Court’s previous instructions in granting the appellant’s second prayer.

(Decided 12th January, 1875.)

For the errors above stated in the rulings against the appellant the judgment must he reversed and a new trial awarded.

Judgment reversed, and new trial awarded.