Baltimore & O.R. Co. v. Breinig

• Decision Date: 11 July 1866
• Citation: 25 Md. 378
• Parties: BALTIMORE & OHIO RAILROAD COMPANY v. ELIZABETH BREINIG, BY HER NEXT FRIEND, HENRY BITTER.
• Court: Maryland Court of Appeals

25 Md. 378

BALTIMORE & OHIO RAILROAD COMPANY v. ELIZABETH BREINIG, BY HER NEXT FRIEND, HENRY BITTER.

Court of Appeals of Maryland

July 11, 1866

While as a general rule, negligence is a question for the jury to decide, yet as negligence consists in the failure or omission to perform some duty which the law imposes, it is within the province of the court to declare what that duty requires, or to lay down the rule of law applicable to the particular case, so that the jury may have some certain guide in forming their verdict.

APPEAL from the Superior Court of Baltimore city:

This was an action instituted by the appellee against the appellant on the 30th of December, 1863, to recover damages for injuries received while attempting to cross the road of the appellant laid in the streets of Baltimore city. The plaintiff declared that the defendant, a corporation, owning a railroad and accustomed to run railway cars along the track of said road in the city of Baltimore, did, on the 9th day of June, 1859, negligently and carelessly cause said cars to run upon and against the plaintiff, whereby she was greatly injured, permanently maimed and crippled, and her life imperiled. The defendant pleaded that it did not commit the wrong charged, and is not guilty in the premises; and issue was joined.

Exception.--At the trial it appeared, that on the 9th day of June, 1859, the plaintiff, who was six years old was living with her father and attending school, and had been attending school for eighteen months; and that her route to and from school required her to cross the track of the Baltimore and Ohio Rail Road at one of the streets just below the Camden station. It also appeared, that on that evening the plaintiff, with two or three of her companions, returning from school, approached the railroad at the point where it crosses Henrietta street--one or two squares out from the Camden station-- where there are three parallel tracks, or two tracks and a "siding;" that the children approached the tracks as two trains were moving upon parallel tracks, in opposite directions, propelled by steam; the one going out led by a heavy engine at a considerable rate of speed, the other consisting of nine cars backing in slowly pushed by a heavy engine. It also appeared, that the children avoided the outward bound train, but were run against by the backing train and knocked down, the child, whose hand was clasped in that of the plaintiff, killed, and the plaintiff knocked down, run over, her foot, the calf of her leg and hip seriously and permanently injured, and also injuries of a private nature sustained.

It further appeared, that the train which did the injury was backing at the time, and had no guard or lookout at the rear, and was under the care and management of two men only--a brakesman who was acting as conductor, and an engineer who was acting also as fireman; that at the time of the injury, the engineer was on the engine, the brakesman on the ground, either beside the engine or between the cars, for the purpose of uncoupling them, and neither of them saw the accident, or knew of it until their attention was called to it by others, when they found the children crushed and under the second car from the rear.

Upon this evidence the defendant offered the three following prayers:

1. If the jury shall believe that the plaintiff was injured by being struck by a train of cars in charge of the agent or agents of the defendant, said agents being men of good character, familiar with their respective duties and competent to discharge them; that it was the duty of one of them to see that the track in front of the train in the direction in which it was moving was clear from obstruction, and if not, to give notice to the engine man to stop the train; that the party intrusted with this duty placed himself in the best position for this purpose, at a point where he could see both in front of the backing train and see the engine man, and that he had seen that the track was clear in front of the rear of the backing train, and that he saw that the plaintiff was standing in safety, where, had she remained, she would have escaped injury, and that he had no reason to believe the plaintiff would leave her position, nor was there anything in the conduct of the defendant to cause her to do so, then the plaintiff is not entitled to recover, even though the jury should believe that the plaintiff did, in fact, run immediately in front of, or attempt to pass through, the train when she was struck and injured.

2. If the jury shall believe that the plaintiff would have escaped the injury complained of by the exercise of diligence on her part, such as was reasonably to be expected from her age and intelligence at the time, then she is not entitled to recover, even though the jury should find negligence on the part of the defendant or its agents.

3. That there is no evidence in the case (should the jury find for the plaintiff) of such wanton and malicious or gross and outrageous conduct on the part of the defendant or its agents as would warrant punitive damages, and that actual damage is all the plaintiff can recover.

The Court (MARTIN, J.,) granted the defendant's second and third prayers, rejected the first, and gave the following instructions:

If the jury find from the evidence that the defendant was, at the time of the happening of the accident, of which the plaintiff complains, the owner of a railroad track or tracks running through or cross 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 the plaintiff, Elizabeth Breinig, was injured by the defendant's cars, and that if the defendant, in the use and management of its cars and engines, had exercised such care and diligence the accident would have been prevented, then the plaintiff is entitled to recover; unless the jury find that the accident could have been avoided by the exercise of that degree of care by the plaintiff which was, under the circumstances of the case, to be naturally and reasonably expected in one of the plaintiff's age and intelligence.

The defendant excepted to the first instruction given by the Court, and to the rejection of its first prayer, and the verdict and judgment being in favor of the plaintiff, appealed.

The cause was argued before BARTOL, GOLDSBOROUGH, and WEISEL, J.

John H. B. Latrobe and Ferdinand C. Latrobe, for the appellant, argued:

1st. That in the management by a railroad company of its engines and cars, while engaged in conducting its usual business, with reference to persons having no connection or privity with the said road, and who may simply be passing in the neighborhood of its tracks, the law requires only such ordinary care and diligence as common prudence would require them to exercise in the management of its said business.

2nd. It is what may be called a principle of the Common Law, that a plaintiff cannot recover for injuries to which his own negligence directly contributed.

3rd. That the rules relating to the rights and duties of persons natural and artificial to each other must be uniform; that they cannot vary according to the years or degree of intellect of natural persons without producing an uncertainty in the law destructive of all principles; that all persons incapable of diligence should, and usually have, guardians to care for them; upon them the duty of care and diligence is devolved, and their negligence must, in law, be regarded as the negligence of the incapable infant or lunatic, when they have been injured in cases arising between them and third persons acting without notice.

4th. That punitive, or vindictive, or exemplary damages can only be awarded by a jury to a plaintiff where elements of fraud, malice, gross negligence or oppression mingle in the controversy.

In support of the above propositions, they refer to State, use of Coughlan, vs. Balto. & O. R. R. Co., 24 Md. Rep., 84. Bannon vs. Balto. & O. R. R. Co., 24 Md. Rep., 108. Brand vs. R. R. Co., 8 Barb. 369.

Henry Stockbridge, for the appellee:

The appellee contends that the appellant, in inflicting upon her the injury which she sustained, was guilty of such gross and outrageous negligence and carelessness that the Court should have permitted the jury to give exemplary damages. Gross negligence, tending to the injury of limb or destruction of life, is visited with punitive damages equally with actual malice. Sedgwick on Damages, 38. Hay vs. Cohoes Co., 3 Barb. S. C. R., 42. Whipple vs. Walpole, 10 N.H. R., 130. Linsley vs. Bushnell, 15 Conn., 225. Huntley vs. Bacon, 15 Conn., 267. Hopkins vs. Atlantic & St. L. R. R. Co., 36 N. H., 17. Kelsey vs. Barney, 2 Kernan, 429.

It is difficult, if not impossible, to conceive of negligence more gross than that of the appellant at the time of this occurrence. There was an utter disregard of the measures of caution prescribed by the ordinances of the city. City Ordinances, 1853, No. 88. Revised Ordinances of 1858, No. 67, 225. The appellee contends that negligence so gross is at law a grave crime.

II. The appellee further...