Baltimore & O.R. Co. v. State

• Decision Date: 24 June 1868
• Citation: 29 Md. 252
• Parties: THE BALTIMORE AND OHIO RAIL ROAD COMPANY v. THE STATE, use of MARY AND JOHN MILLER.
• Court: Maryland Court of Appeals

29 Md. 252

THE BALTIMORE AND OHIO RAIL ROAD COMPANY v. THE STATE, use of MARY AND JOHN MILLER.

Court of Appeals of Maryland

June 24, 1868

APPEAL from the Superior Court of Baltimore City.

This action was brought against the appellant, for the use of Mary Miller and John Miller, the equitable plaintiffs, to recover damages for the killing of one Otto G. Miller, who was the husband of Mary, and the father of John.

1 st Exception: The deceased was killed on Ostend street, in the city of Baltimore, about twelve feet from the intersection of Russell street; he had gone down Russell street, and was crossing Ostend street; a steam engine and tender, with the tender ahead, was going westwardly on a rail road track of the appellant, laid down on Ostend street, on the northern side of the street; just before, a train of coal hoppers, about thirty in number, had passed along eastwardly on a rail road track on the southern side of the same street there were high banks on each side of Ostend street, as also on each side of Russell street; the place where Miller was killed was a very dangerous place, and a person going down Russell street towards the rail road tracks could not see either up or down the tracks until he got very near them.

It was also shown that no bell was rung, and that no one was riding on the tender in front, as required by Ordinance, No. 67, of Revised Ordinances of 1858. This Ordinance, as also Ordinance, No. 34, of same revisal, were offered in evidence. The appellee's proof shewed that no whistle was blown while the appellant's proof maintained the contrary. Other evidence was given tending to shew negligence on the part of Miller. It was also shewn that he was a sober industrious man, with a wife, and child ten years old, who are the equitable plaintiffs; that he earned from twelve to fourteen dollars per week, and supported his family comfortably in a small house.

On the evidence the plaintiff prayed the Court to instruct the jury as follows:

If the jury find from the evidence, that the defendant was, at the time of the happening of the alleged accident of which the plaintiff complains, the owner of a rail road track or tracks running through or across the thoroughfares and streets of the city of Baltimore, as described by the witnesses, and along which for its own purposes, cars were drawn or propelled by steam engines, then in the use and management of said cars and engines, the defendant was bound to exercise the utmost care and diligence which it had the means and power to employ, having regard to the business in which it was engaged; and if the jury find that Otto G. Miller was killed by a tender attached to a steam engine belonging to the defendant, and that if the defendant in the use and management of its cars and engines, had exercised such care and diligence, the killing would not have occurred; and if the jury find that said Miller was the husband of one of the equitable plaintiffs, and the father of the other, and that this last mentioned is a child under the age of twenty-one years, then the plaintiff is entitled to recover, unless the jury find that the killing could have been avoided by the exercise, on the part of the deceased, of ordinary care.

This instruction the Court granted, and the defendant excepted.

2 d Exception: The defendant offered the following prayers:

1. If the jury shall believe from the evidence, that just before the happening of the accident whereby said Miller was killed he was standing in the bed of Ostend or Russell street, with his attention attracted by the train of cars passing eastwardly on the south track in Ostend street, and that he did not observe the engine and tender backing westwardly on the north track on Ostend street, and that without looking to the left when the train on the south track had passed, he stepped on the north track and was thrown down and killed by being struck by the tender, as testified to by the witnesses then he was not exercising such care for his own safety, as was proper; and becoming a contributor to his own injury, the plaintiff cannot recover, even should the jury believe that by the exercise of greater diligence the defendant, by its agents, might have prevented the accident.

2. That if the jury shall believe the facts stated hypothetically in the first prayer, as regards the passing of the train, and the movement of the engine and tender, and the position of Miller at the time, then if the jury shall believe that the defendant's agents saw Miller standing in safety, from their position on the engine as testified, it was reasonable for them to suppose that he would remain where he was, and would not attempt to cross the track in front of the tender, and they were under no obligation to check the speed of their engine or stop the same until they saw whether he would cross or not, and no negligence can be imputed to them for not doing so; provided the jury shall believe that the said engine and tender were moving slowly at the time, and that the signal of their approach was given by those in charge of them, as testified to by the witnesses on the part of the defendant.

3. If the jury shall believe from the evidence, that on approaching the street, the engineman blew the whistle as a signal, and saw the said Miller stop as he approached the street, and that as soon as notice was given to him, that the said Miller was attempting to cross the street, he reversed the engine, and stopped it within the length of the tender, and that the engine was moving slowly at the time, then the plaintiff is not entitled to recover.

4. If the jury shall believe from the evidence, that the deceased lost his life because of the want of ordinary care on his part, then the plaintiff is not entitled to recover, even though the jury should believe that the Ordinances of the city, were violated by the defendant in not ringing a bell, or having a man on the rear end of the tender, or that it was otherwise in fault.

5. That the plaintiff is entitled only to such actual pecuniary loss as the cestui que use may have sustained, and that the jury are not authorised to give exemplary or punitive damages, or to take into consideration the pain and grief of the survivors.

6. If the jury shall believe from the evidence, that the deceased, when approaching the northern track of the road on which he was killed, looked neither to the right nor left, to see whether the train was approaching, then there was such a want of ordinary care on his part as will prevent the jury from giving a verdict for the plaintiff.

The Court (MARTIN, J.,) granted the fourth and fifth prayers, and refused to grant the first, second, third and sixth.

To this refusal the defendant excepted, and the verdict and judgment being against it, the present appeal was taken.

The cause was argued before BARTOL, C.J., STEWART, MILLER and ALVEY, J.

Ferdinand C. Latrobe, for the appellant:

The instruction of the Court in granting the plaintiff's prayer was erroneous, because it required the defendant in the management of its cars and engines, at the time of the accident, to have exercised " the utmost care and diligence which it had the means and power to employ, having regard to the business in which it was engaged." This was exacting more than the law required of the defendant. The liability of the defendant in this case, did not depend upon its obligation as a carrier of passengers, in which character it is bound to use the utmost care and diligence which human foresight can use, but the party killed not being a passenger, the defendant was not required to exercise that degree of vigilance which the law requires towards those, between whom and it there is a relation of trust and confidence. State, use of Coughlan vs. The Balt. & Ohio Rail Road Co., 24 Md. Rep., 84; Bannon vs. The Balt. & Ohio Rail Road Co., 24 Md. Rep., 108; Brand vs. The Troy & Schenectady Rail Road Co., 8 Barb., 378; Balt. & Ohio R. R. Co. vs. Breinig, 25 Md. Rep., 378.

The refusal of the Court to grant the first, second, third and sixth prayers of the defendant was erroneous. The law is well established that, notwithstanding there may be negligence proved on the part of the defendant, it is equally necessary for the plaintiff to establish the proposition that he was without negligence. Spencer vs. The Utica and Schenectady Rail Road Co., 5 Barbour, 337; Hartfield vs. Roper & Newell, 21 Wendell, 615; State, use of Coughlan, vs. Balt. & Ohio R. R. Co., 24 Md. Rep., 84.

The refusal of the Court, therefore, to grant the first and sixth prayers of the defendant was erroneous, because the evidence of contributing negligence on the part of the deceased and utter disregard of his own safety, was so clear, that it was the duty of the Court to have determined it as a question of law. Where the inference from the facts, in any view that may be taken of the case, is necessarily, that there was negligence, the Court ought to determine it as a matter of law. Briggs vs. Taylor, 28 Vermont Rep., 180; Cornman vs. Eastern Counties Railway, 5 Jurist, new series, 657; Cotton vs. Wood, 7 Jurist, new series, 168; Wilds vs. Hudson River Rail Road Co., 24 N.Y. Rep., 430, and 2 Am'n Law Reg., new series, 76; P. & C. Rail Road Co. vs. McClurg, March number, (1868,) American Law Reg., 277, 280; Todd vs. Old Colony & Fall River R. R., 7 Allen, 207.

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