Baltimore & Ohio Railroad v. Kean

Yellott, J.,

delivered the opinion of the Court.

This case has been before this Court on a former appeal ; the verdict and judgment in the Circuit Court for *400 Frederick County having, on the first trial, been adverse to the plaintiff below. That judgment was reversed and a new trial awarded. The result of a second trial was a verdict in favor of the plaintiff and from the judgment then rendered this appeal has been taken by the defendant.

The action was brought for the recovery of damages sustained hy the plaintiff who was injured by a train of cars belonging to the defendant and controlled by its agents. There was evidence adduced by both parties in' relation to the question of negligence. When the testimony was closed the plaintiff offered three and the defendant twelve prayers for instructions. The Court granted the plaintiff’s prayers and also all the prayers offered hy the defendant except the sixth, seventh and eighth, which were rejected. To the rejection of these three prayers and to the granting of the plaintiff’s prayers, the defendant has excepted. The questions relating to negligence, which have been presented by the plaintiff’s first and second prayers have .already been determined hy this Court on the former appeal. In the opinion reported in 61 Md., 164 , we find a summary of all that the Courts have said on the subject in the numerous cases of this nature which have been under adjudication.

The governing principle established by the Courts may now be clearly and concisely expressed in á very few words. If both parties have been negligent, but want of due care and caution on the part of the plaintiff was the direct cause of the injury, or in other words, if the injury could not have been sustained if the plaintiff had not been careless arid neglectful in providing for his safety, there can he no recovery in the action. But if, on the other hand, it is apparent from the evidence that the plaintiff, although negligent, would have suffered no injury had proper care and caution been observed by the defendant, the right of action is maintainable, and the defendant *401 must be held liable for the damages ascertained by the proof in the cause.

The rule in question has been enunciated with great clearness and precision in Tuff vs. Warman, 5 C. B. N. S., 585, in which case it was said:

“ It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence and want of ordinary care and caution on his part, the misfortune would not have happened. In the first case, the plaintiff would be entitled to recover, in the latter not; as, but for his own fault, the misfortune would not have happened. Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover, unless it was such, that, but for that negligence or want of ordinary care and caution, the misfortune could not have happened; nor, if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff.”

The first and second prayers of the plaintiff were evidently prepared with strict reference to these principles, and the Court below committed no error in granting the instructions thus invoked. Nor is there the slightest objection apparent from the phraseology of the plaintiff’s third prayer. It enunciates a rule in relation to the measure of damages which has been sanctioned by the Courts in all such cases and it was, therefore, properly granted.

The sixth, seventh and eighth prayers of the defendant ask the Court to say that there is no evidence in the cause legally sufficient to show a want of reasonable care and diligence on the part of the agents of the defendant in *402 charge of its train of cars* after the discovery of the plaintiff on the track. Now the plaintiff had in evidence, the statements of two experienced men who had been engaged in the business of running trains of cars and who said that ordinary care would, in their opinion, have stopped the cars before they could have come in contact with the' plaintiff. It is manifest that the Court could not assume the truth of this evidence and then take the question from the decision of the jury. The jury might have given credence to this testimony which would, of course, have involved a disbelief in all contradictory evidence. The ' Court was, therefore, clearly right in rejecting these three prayers'offered by the defendant.

The defendant’s first, third and fourth bills of exception relate to the admission as evidence of its rule, No. 83, which is a prohibition against making “ running switches.” When the objection to the admission of this evidence was made, the plaintiff offered to follow it up by the introduction of proof showing that at the time when the injury occurred, the agents of the defendant were making a “running switch.” On this offer the Court admitted the evidence. The plaintiff then proved that he was knocked down and injured by some cars belonging to the defendant which were running without an engine. A running switch is said to consist either “in detaching the portion of the train, to be switched off, while the cars are in motion,” or “ the .locomotive, without being coupled, may back up to a car, or a portion of a train, with considerable speed, and, giving it a parting kick, send it off in any desired direction.” 1 Thompson on Neg., 452; Chicago R. R. Co. vs. Dignan, 56 Ill., 487 ; Haley vs. New York, &c. R. R. Co., 7 Hun, 84; Hay vs. Penn. R. R. Co., 65 Pa. St., 269.

There was evidence that the train of cars, by which the injury was inflicted, was running without an engine. As it is to he presumed, in the absence of proof to the con *403 trary, that every train of cars running on the defendant’s road, is under the control of its agents, there was certainly evidence to go to the jury tending to prove that the defendant’s agents were making a “ running switch.” The plaintiff therefore did follow up the evidence objected to, by proper proof, which was afterwards supplemented and strengthened by that offered by the defendant and sifted, to the advantage of the plaintiff, on cross-examination.

The plaintiff’s testimony did not expressly designate the movement of the train as a “running switch,” but proved that such was the actual condition of things at the time when the accident occurred. The evidence of the defendant clearly proved that the condition of things proved by the plaintiff, or in other words, the peculiar movement of the cars, was what is known as “a running switch.” The evidence shows that the conductor detached the engine from the cars and let the train in on another track. The witness was then asked, on cross-examination, “what is the manoeuvre, you have just described, called among railroad men ? ” The answer was, that on the Balt. & Ohio E. E., it is called a “ running switch.” The Court overruled an objection to this question and this ruling is the basis for defendant's second bill of exception. It is clear that the question was proper on cross-examination, and that the plaintiff was entitled to the benefit of the proof thus elicited.

What has been said necessarily disposes of the defendant’s first, third and fourth bills of exception founded on the refusal of the Court, on motion, to exclude from the consideration of the jury, rule 83 of the Baltimore and Ohio Eailroad Company, offered in evidence in chief by the plaintiff.

The defendant’s sixth exception relates to the reading, by plaintiff’s counsel, from one of the Eeports, as a part of his argument to the jury. In the case of the Augusta Insurance and Banking Co. vs. Abbott, 12 Md., 383 , a *404 similar question was presented, and the Court said “ that, in conducting trials at nisiprius, many things necessarily depend upon the discretion of the Court,” and that the exception taken “was on a matter within the discretion of the Court, and that no appeal lies therefrom.” It may be safely assumed, that no Judge will ever permit counsel to supplement an argument by reading to the jury from the books, any exposition of legal principles conflicting with the instructions given by the Court.

(Decided 22nd June, 1886.)

There being no perceptible error in any of the rulings of the Court below, the judgment should be affirmed.

Judgment affirmed.