Baltimore & O.R. Co. v. Lamborn

• Decision Date: 20 July 1858
• Citation: 12 Md. 257
• Parties: THE BALTIMORE AND OHIO RAIL ROAD COMPANY, v. WILLIAM LAMBORN.
• Court: Maryland Court of Appeals

12 Md. 257

THE BALTIMORE AND OHIO RAIL ROAD COMPANY, v. WILLIAM LAMBORN.

Court of Appeals of Maryland.

Jul. 20, 1858

At common law a plaintiff cannot recover for injuries to which his own fault or negligence directly contributed, and this principle is not changed by the acts of 1838, ch 244, and 1846, ch. 346, in relation to the liability of rail road companies in this State, for injuries to cattle and stock on their roads.

Under these acts, rail road companies are bound to show that the damage was the result of inevitable accident only in cases where the party complaining has not contributed in any manner, by his own negligence or violation of law, to the injury complained of.

The owner of cattle is bound to keep them in an enclosure or in custody at his peril, for every entry by them on another's possession is a trespass, and this principle applies as well to the intrusion of cattle and horses, upon the land over which a rail road company is entitled to its franchise as to the property of a private owner.

The acts of 1838, ch. 244, and 1846, ch. 346, give a right of action to the owner of stock, killed or injured on a railway only when such stock is on the railway without any fault on the part of the plaintiff.

APPEAL from the Circuit Court for Howard county.

Trespass on the case, brought by the appellee against the appellant, to recover the value of a horse belonging to the plaintiff, killed by the locomotive of the defendant. Plea non cul.

Exception. The facts of the case, as given in evidence, are fully stated in the opinion of this court. The defendant asked four instructions, in substance as follows:

1st. If the jury believe from the evidence, that the plaintiff's horse was injured by the locomotive of the defendant, under charge of its agents, and that the horse was on the track of the rail road through any negligence on the part of the plaintiff to keep the horse within his close, the plaintiff is not entitled to recover.

2nd. If the jury believe from the evidence, that the plaintiff's horse was injured by the locomotive of the defendant under the management and control of its agents, and that, at the time of such injury, the horse had strayed upon the track of the rail road through the want of fences which the plaintiff was bound to erect, the plaintiff is not entitled to recover, though, at the immediate time of the injury being done, the defendant was guilty of actual negligence.

3rd. If the jury believe from the evidence, that the plaintiff's horse was injured by the locomotive of the defendant, under the management and control of its agents, and that the horse had strayed upon the track of the rail road through any defect in the fences or enclosures of the plaintiff, then the plaintiff is not entitled to recover.

4th. If the jury believe from the evidence, that the plaintiff's horse was killed on the rail road, by being run over by a locomotive under the control and management of the defendant's agents, and that the horse was upon the track of the rail road without any fault or negligence of the defendant, then the plaintiff is not entitled to recover, he being bound to keep the horse upon his premises and within his enclosures.

These instructions the court, (BREWER, J.,) refused to give, and to this ruling the defendant excepted, and the verdict and judgment being in favor of the plaintiff, appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

Thomas Donaldson for the appellant:

1st. The injury complained of would not have happened, but for the negligence of the plaintiff in permitting his horse to stray at large in the neighborhood of the rail road. The well settled principle of the common law, that a plaintiff is not entitled to recover for injuries to which his own fault directly contributed, is not abrogated or even modified by the acts of 1838, ch. 244, and 1846, ch. 346. The sole effect of these acts, is to throw upon the defendant the burden of proof in regard to the absence of negligence on his part, leaving the question of the effect of the negligence of the plaintiff, exactly as it stood under the common law. 4 Md. Rep., 242, Balto. & Susq. Rail Road Co., vs. Woodruff. 14 Barb., 364, Marsh vs. New York & Erie Rail Road Co. 3 Kernan, 42, Corwin vs. New York & Erie Rail Road Co. 13 Georgia, 68, Macon & Western Rail Road Co., vs. Davis. Any other construction of these acts would not only be unreasonable, and would subject rail road companies to the grossest imposition, and the travelling community to imminent hazards, but would be an invasion of constitutional rights.

2nd. Every owner of cattle is bound to keep them within his own close; if they stray upon the rail road they are trespassers, and the owner is himself the cause of any injury suffered in consequence. The acts of Assembly referred to cannot reasonably be so construed as to give a right of action, except in cases where the cattle are rightfully crossing the track as when driven on a highway. 4 Exch. Rep., 580, Sharrod vs. London & North-Western Railway Co. 5 Denio, 255, Tonawanda Rail Road Co., vs. Munger. 11 Barb., 112, Clark vs. Syracuse & Utica Rail Road Co. 19 Penn. State Rep., 298, Rail Road Co., vs. Skinner. 1 Foster, 363, Towns vs. Cheshire Rail Road Co. 2 Zabriskie, 185, Vandegrift vs. Rediker. 2 Mich., 259, Williams vs. Michigan Central Rail Road Co. 6 Barr., 472, Knight vs. Abert.

3rd. It is gross negligence for the owner of cattle, to suffer them to go at large in the vicinity of a rail road. 14 Barb., 364. 13 Barb., 497, Talmadge vs. Renssalaer & Saratoga Rail Road Co.

Wm. H. G. Dorsey for the appellee:

There is no evidence in the record of any negligence on the part of the plaintiff, and under the acts of 1838, ch. 244, and 1846, ch. 346, the plaintiff was entitled to recover, unless the defendant could show the injury to the horse to be the result of unavoidable accident.

OPINION

BARTOL, J.

This is an action to recover the value of a horse, belonging to the appellee, killed by the locomotive of the appellant.

At the trial of the cause, the plaintiff, to maintain the issue on his part, proved that some time in the month of September 1855, he was the owner and proprietor of certain land adjoining and contiguous to the Washington branch of the Baltimore and Ohio Rail Road, at or near the Hanover switch, where the cars of the defendant stop, when necessary, to put off or take up passengers, and that he was also the owner of a horse which, at the time referred to, was standing at or near the point indicated, on the line of the said rail road, though not immediately in the track, and which was run over by the cars of the said defendant, and so injured as to be entirely lost to the said plaintiff.

The defendants,...