Baltimore & O.R. Co. v. Kean

• Decision Date: 22 June 1886
• Citation: 5 A. 325,65 Md. 394
• Parties: BALTIMORE & O. R. CO. v. KEAN.
• Court: Maryland Court of Appeals

5 A. 325

65 Md. 394

BALTIMORE & O. R. CO. v. KEAN.

Court of Appeals of Maryland

June 22, 1886

Appeal from circuit court, Frederick county.

John K. Cowen, A. H. Boyd, and C. W. Ross for appellant.

William Walsh, F. I. Nelson, and Ferd. Williams, for appellee.

YELLOTT J.

This case has been before this court on a former appeal; the verdict and judgment in the circuit court for 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 by 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 by 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 by 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 a 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 and neglectful in providing for his safety, there can be 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 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 v. 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 were 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."

But the clearest and most distinct definitions of negligence cannot, of course, be segregated from facts without assuming the appearance of abstract propositions, and thus becoming devoid of practical utility until applied to the evidence in a cause. No particular act can be properly designated as negligent or otherwise until the surrounding facts and circumstances, governing and controlling the actor, have been ascertained and satisfactorily established by competent proof. As was said by this court in Northern Cent. R. Co. v. State, 29 Md. 438: "What may be gross negligence in one case may not be so in the light of the particular facts of another; and ordinary care in one state of case may be very gross negligence in another and a different case."

In the trial of this case in the court below the question of contributory negligence was presented and had to be determined, and the evidence was conflicting and contradictory. The duty of discovering the truth devolved on the jury; the court announcing the legal principles applicable to any state of facts found by them to be true. There was evidence that the plaintiff was intoxicated, and there was evidence that he was sober; but this record contains no evidence which tends to show that the plaintiff was sober, and at the same time had perfect freedom of action. He states, in his testimony, that when the train was approaching he was sober, but that his foot was fastened so that he could not, by any possible effort on his part, escape from the impending danger. This evidence of his sobriety must be taken in connection with the fact that he had his foot fastened, and could not escape. If, therefore, the jury believed that he was sober, but could not move from his perilous...