Baltimore & Ohio Railroad v. State ex rel. Hauer

Alvey, J.,

delivered the opinion of the Court.

Luther Hauer, the father of the equitable plaintiffs in this case, was killed by a locomotive engine and a train of cars on the road of the defendant, on the 4th of June, 1880; and this action was brought under Article 65 of the Code, to recover for the alleged negligence of the defendant in causing the death.

At the trial there were three bills of exception taken by the defendant; two in respect to rulings upon the admissibility of evidence, and one in respect to the rulings •upon the prayers offered by the respective parties.

1. Tn the first bill of exception the question intended to be raised was as to the admissibility of evidence taken under a commission. The ground of the objection to the admissibility of the evidence, as we gather it from the argument of counsel, was the supposed want of opportunity by the defendant to exhibit cross-interrogatories to the witness examined under the commission. But' it is the settled practice in this State, that, in the execution of foreign commissions to take evidence, no notice to the par *459 ties of the time and place of the execution of the commission is necessary. All the notice required to the opposite party is that of the interrogatories filed to be sent out with the commission. Calvert vs. Coxe, 1 Gill, 95, 120 ; Parker vs. Sedwick, 4 Gill, 318 . Actual or constructive notice, however, of the filing of the interrogatories should be given to the opposite party in time to enable him to exhibit cross-interrogatories before the commission is sent out. But in this case it appears that the interrogatories in chief were filed before the commission was issued, and were served on the attorney of the defendant, and that the attorney wrote at the foot of the interrogatories thus served upon him, “Let commission issue as proposed.” This must be taken as a waiver of all further service of the interrogatories, and of all further delay of the commission. The objection, therefore, to the admissibility of the evidence taken under the commission was properly overruled.

2. The question to the witness, and the answer thereto, excepted to by the defendant in the second bill of exception, would seem to he quite immaterial, and it is not perceived how the answer of the witness could have prejudiced the defendant. The jury were fully and explicitly instructed upon the subject of the measure of damages, and the principles upon which the damages were to be assessed ; and we are not to assume that those instructions were disregarded by the jury. The statement of the witness as to the residence of the children of the deceased, and with whom they were living at the time of the trial, while not material facts to any question to be passed upon by the jury, afford no sufficient ground for the reversal of the judgment.

3. The third bill of exception embraces the rulings of the Court upon the prayers offered by plaintiff and defendant for instructions to the jury, upon the whole evidence in the case.

*460 ■ It appears from the proof in the record that Hauer, the deceased, on the morning of the accident, had procured a ticket and taken passage over the road of the defendant from Hagerstown to Frederick. Coming from Hagerstown on the Washington County Branch of the defendant’s road, on reaching Weverton, a station on the main line of the road, the deceased, with the other passengers, was required to change cars; and it was necessary, upon arriving at that station, to-wait there for an east-hound train which would take him on to Frederick. The main line of road has two principal tracks at this station; and as shown by the plat, there is a large platform on the north, separating the tracks of the main line from the-tracks of the Washington County Branch road. There was also a smaller platform between the tracks of the main line, used by passengers in hoarding the east-hound trains coming down on the south-side track. The train that the deceased intended to take came down on the last mentioned track, and had stopped to let off and take up the passengers, when the deceased, in attempting to cross the north main track, from the larger to the smaller platform, in order to get on the train that he was to take, was struck by a west-bound freight train, -and was mortally injured.

It is shown in proof that there was a red target signal at this station, which it was the duty of the defendant’s telegraph operator to put down when passenger trains were due there, or were stopping to let off or take on passengers. This signal, according to the proof, was down, and it was an imperative warning to all freight trains, hound either east or west, to stop and not to approach the station while the passenger trains remained there. This signal was entirely unheeded upon the occasion of the accident in question. The freight train, without signal of its approach, came up to and passed the station, while the people were in the act of passing from one platform to the *461 other, in order to get on the east-bound passenger train; and it was in consequence of this non-observance of the rules of the road, and the signal displayed, by those in charge of the freight train, that the fatal collision occurred.

It also appears from the evidence that while the deceased was in the act of passing from the one platform to the other, and crossing the north track of the main line, there was an outcry and a general warning given to the passengers to get off the track and out of the way of the approaching train. But whether the deceased heard or understood the warning in time to make his escape, or whether he saw the train approaching, and ventured to cross the track in disregard of the danger, are questions left in doubt, and in regard to which there is some conflict among the witnesses as to what did really occur. It is clear, if the deceased had anticipated the passing of the train, and been on the look-out for it, he could have seen it in ample time to have avoided the accident. The evidence on both sides establishes this beyond question. But that there was gross negligence on the part of the employes of the defendant in running the freight train up to and by the station, under the circumstances of the case, is clear beyond doubt, and that fact is not disputed by the defendant. It is, however, insisted for the defendant that the deceased might have avoided the consequences of the negligence in running the freight train by the station, by the use of ordinary care.

In all cases of this kind there are two questions involved. First, whether there be negligence on the part of the defendant which produced the injury complained of? and, secondly, whether the party injured might, by the exercise of ordinary care on his part, under the circumstances of the case, have avoided the accident? In this case, as we have seen, the first of these questions is made clear upon the evidence, and is not open to contro *462 versy ; and the case mainly depends upon the manner in which the second of these questions was submitted to the finding of the jury, by the instructions that were given by the Court below;

There can, of course, be no doubt of the general proposition, in a case like the present, that although the agents and employes of the railroad company may be guilty of gross negligence in the manner of operating the road; yet if the passenger, in passing from one train to another, recklessly and without care, fails to pay heed to timely warnings, and attempts to cross a track in front of an approaching train that he does in fact see approaching, or which he knows to be approaching in dangerous proximity, and is killed or injured, such accident is attributable, not to the negligence of the railroad company, but to the reckless negligence of the injured party himself. But while such -is the general principle, in each case the special facts and circumstances must be considered, and their bearing upon the propriety of the conduct of the party injured, except where the facts are clear and undisputed, must be submitted to the jury for their consideration.

The want of ordinary care on the part of the party injured is matter of defence, and the onus of proof of the fact is upon the defendant. And in considering the facts, the question of ordinary care on the part of the party injured is not to be determined in an abstract way, but relatively, as it may be connected with and dependent upon the duty and. obligation of the defendant. It is settled, by all respectable authority, that while the carriers of passengers are not insurers of absolute safety, yet they are bound to exercise reasonable care, according to the nature of their contract; and as their employment involves the safety of the lives and limbs of. their passengers, the law requires the highest degree of care which is consistent with the nature of their undertaking. Warren vs. Fitchburg R. Co., 8 Allen, 227 ; Balt. & Oh. R. Co. vs. Worthington, 21 Md., *463 275 ; State, use of Coughlan vs. Balt. & Oh. R. Co., 24 Md., 84, 102 ; Bannon vs. Balt. & Oh. R. Co., 24 Md., 108, 121 .

Here the deceased was a passenger, with a ticket that entitled him to be carried safely from Hagerstown to Frederick. By the regular route and mode of carriage it was necessary for him to change cars at the We ver ton Station, and to cross over the intervening track of the defendant from one train to another. In making this transit he continues to be a passenger of the defendant, and entitled to the protection that the highest degree of care on the part of the defendant could afford, under the circumstances. In leaving the train from Hagerstown, at the station, and in crossing over the intervening track from one platform to the other, in order to take the east bound train, the deceased might well assume that the defendant would not expose him to any danger which, by the exercise of due care, could be avoided. And though the deceased himself was required to exercise reasonable care, yet we may suppose that his watchfulness was naturally lessened by his reliance upon the faithful observance by the employes of the defendant of such precautionary rules and regulations as would secure to passengers a safe transfer from one train to the other. And, except in the presence of immediate apparent danger, he was authorised to act upon such reliance. For the general rule that applies in ordinary cases of parties crossing railroad tracks, that they should stop, look, and listen, before making the venture, does not apply in a case like the present. In such case as this, the rule is, as established by a number of well considered cases, that the passenger of the railroad is justified in assuming that the company has, in the exercise of due care, so regulated its trains that the road will be free from interruption or obstruction when passenger trains stop at a depot or station to receive and deliver passengers. Upon any other principle the lives of passengers might be most dangerously exposed, in the hurry, noise and confusion *464 that generally attend the transfer of passengers at a connecting station. Warren vs. Fitchburg R. Co., supra; Gaynor vs. Old Colony & Newport R. Co., 100 Mass., 208, 215 ; Terry vs. Jewett, 78 N. Y., 338 ; Brassell vs. N. Y. Cen. & H. River R. Co., 84 N. Y., 241 ; Klein vs. Jewett, 26 N. J. Eq., 474; affirmed in 27 Id., 550.

Now, applying the principle just stated to the several prayers offered hy the plaintiff and defendant, it follows, as to the first instruction granted at the instance of the plaintiff, that it was rightly granted ; and we do not rmderstand that it is questioned by the defendant. But the second instruction granted for the plaintiff is objected to; and if that instruction stood' alone, and without connection with or dependence upon the preceding instruction, there might he ground for the objection taken to it. It is, however, hy express terms, made dependent upon the finding of all the facts set out in the first instruction, and the conclusion authorised by it could only he arrived at by the finding of all those facts. By the first instruction the jury were required to find “that the killing of the deceased resulted directly from the want of the exercise of ordinary care and prudence on the part of the agents of the defendant, and not from the want of ordinary care and prudence of the deceased, contributing to the accident.” If those facts were found, notwithstanding there may have been a want of ordinary care on the part of the deceased in attempting to cross the railroad track, under the circumstances, the right to recover was not necessarily , precluded. It is not every fault or want of ordinary care on the part of the party injured, in connection with the happening of the accident, that will defeat the right to recover. The books abound with cases to the contrary. This second instruction, with its dependence upon the preceding instruction, is identical with one granted in the case of Trainor, 33 Md., 544 , 553, and which this Court held to he correct. Besides, hy the first, second, fourth *465 and. fifth instructions, granted at the instance of the defendant, the jury were fully and explicitly instructed in reference t© the occurrence of the accident, and as favorably as the defendant could possibly ask. Each of those instructions concluded against the right of the plaintiff to recover, and they presented the case fully and explicitly in all its aspects. And those instructions completely removed all possible room for any supposed misleading tendency or doubtful interpretation of the plaintiff's second instruction, in reference to the degree of care required of the deceased.

The third, fourth, and fifth instructions, granted at the instance of the plaintiff, would appear to be free of error, and there has been no question made on them in this Court. But the defendant earnestly insists that there was error committed in the rejection of its third prayer. In this contention, however, we do not agree.

That prayer was properly refused for two reasons. First, because, by the prayers granted at the instance of the defendant, the jury were fully instructed as to all the conditions of the case upon the finding of which the defendant ■could be exonerated from liability, — all of the prayers conceding the negligence of the defendant; and, secondly, because the prayer, if it had been granted, would have been misleading to the jury. It entirely ignored the fact that the deceased was a passenger, and was entitled to the protection of a passenger in passing over the intervening track to board the train that was to take him on his way to Frederick. It required of the deceased the exercise of care and caution to ascertain whether there was danger of a passing train, before attempting to cross the track to board the train that he was required to take ; whereas he was, unless he saw or know of the approaching train, justified in acting upon the implied assurance that no train ’would be allowed to pass the station to obstruct the trans *466 fer of passengers from one train to another. There was-no error, therefore, in rejecting that prayer.

There has heen no serious question made upon the rejection of the defendant’s sixth prayer. This we may suppose was for the obvious reason, that' the defendant obtained the full benefit of everything contained in that prayer in the first, fourth, and fifth prayers, upon the same subject. The Court clearly committed no error in refusing to duplicate its instructions, merely because of some slight change of phraseology.

4. The remaining questions relate to the damages, and the principles upon which they are assessed and apportioned. It is insisted by the defendant that the adult children of the deceased are not entitled to any compensation, under the statute, on account of the death of their father. And whether this be so or not depends upon the proper construction of the first and second sections of Article 65 of the Code.

Those sections of the Code are-almost a literal transcript of the English Statute, 9 & 10 Vict. ch. 93, known as Lord Campbell’s Act; the English statute requiring the action to he brought by the executor or administrator of the deceased, for the use of the parties mentioned, while our statute requires the action to be brought by and in the name of the State, for the use of such parties. Under both statutes alike the action is to be for the benefit of the wife, husband, parent, and child of the deceased; and in every such action, the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties for whose benefit suit is brought, and such damages are required to he divided among the parties entitled by the verdict of the jury. The statute makes no reference to the age or condition of the parties, but it simply provides for damages “proportioned to the injur y resulting from such death to the parties ” for whom suit may be brought. In the English Courts the construction *467 of this statute has been the subject of careful consideration in several cases; and those Courts have uniformly held that the damages in such cases must be confined to pecuniary loss, and the jury should not be allowed to take into consideration the pain and suffering of the deceased, or the mental suffering of the parties for whose use the action is brought. But in those cases it is distinctly held that “legal liability alone is not the test of injury, in respect of which damages may be recovered under the statute ; but that the reasonable expectation of pecuniary advantage by the relative remaining alive may be taken into account by the jury, and damages given in respect of that expectation, if it be disappointed and the probable pecuniary loss thereby occasioned.” Dalton vs. S. E. Ry. Co., 4 C. B., (N. S.,) 296; Franklin vs. S. E. Ry. Co., 3 H. & N., 211: Pym vs. G. N. Ry. Co., 2 B. & S., 759. In other words, the damages to be allowed for the injury sustained should be a compensation to the family of the deceased, or those entitled, equivalent to the pecuniary benefits which they might have reasonably expected from the continuance of his life. Bradburn vs. Great W. Ry. Co., L. R., 10 Ex., 1. Thus the children may recover for the loss of the education, comforts, and position in society, which they would have enjoyed if their father had lived and retained the income which died with him, and they had continued to form part of his family. Pym vs. Great North. Ry. Co., 2 B. & S., 759; affirmed, 4 B. & S., 396; Mayne on Damages, sec. 707. See, also, the case of Railroad Co. vs. Barrow, 5 Wall., 90 , where, upon a statute of a similar import to that of our own, it was held, that the right to recover did not depend upon any legal claim upon the deceased for support.

In the case of the State, use of Coughlan vs. Balto. & Oh. R. Co., 24 Md., 84, 105 , the action was for the benefit óf a widowed mother for the death of her minor son. In that case it was said -by the Court, that “the law on- *468 titles the mother to the services of her child during his minority only (the father being dead); beyond this, the chances of survivorship, his ability or willingness to support her, are matters of conjecture too vague to enter into an estimate of damages merely compensatory.” But this is quite a different case. Here the action is for the benefit of the children for the loss of the father; and it falls within the express ruling of the English cases upon the terms of the statute. And it is said in 24 Md., 106 , that we can have no better guide in the construction of this statute of ours than the decisions of the English Courts upon the similar English statute. Both statutes are founded in the same reason and policy, and being expressed in similar terms, there ought in reason to he no diversity in construction.

In view of the principles of construction just stated, the sixth and seventh prayers of the plaintiff, granted as they were in connection with the seventh and ninth prayers of the defendant, the four instructions being taken together, instructed the jury, as to the measure and principle of estimating the damages, in a manner unobjectionable. By the seventh instruction, granted at the instance of the defendant, the jury were directed to exclude from their consideration all claims for damages by the adult children, unless they should find that such adult children “ were dependent upon their father for support and maintenance, by reason of some want of ability to support and maintain themselves.” This was certainly as restrictive as the defendant could ask; and having obtained such an instruction, the eighth prayer could not have been consistently granted. See Deford vs. State, use of Keyser, 30 Md., 179, 208 ; P., W. & R. R. Co. vs. State, use of Bitzer, 58 Md., 374 , 399.

It is urged that the amount of the damages awarded by the verdict was' largely in excess of any pecuniary injury sustained, and that the apportionment was not warranted *469 by the proof. But however that may be, it is not a matter with which this Court can deal. There was no question made in the Court below as to the legal insufficiency of the evidence to show pecuniary loss to any of the parties; and the only remedy for excessive damages was with that Court, on motion for a new trial.

(Decided 21st June, 1883.)

The judgment must be affirmed.

Judgment affirmed.