Baltimore & O. Railroad Co. v. Worthington

• Decision Date: 14 April 1864
• Citation: 21 Md. 275
• Parties: THE BALTIMORE & OHIO RAIL ROAD COMPANY v. BRICE J. WORTHINGTON.
• Court: Maryland Court of Appeals

21 Md. 275

THE BALTIMORE & OHIO RAIL ROAD COMPANY v. BRICE J. WORTHINGTON.

Court of Appeals of Maryland.

April 14, 1864

APPEAL from the Superior Court of Baltimore City:

This was an action brought by the appellee against the appellant to recover damages for injuries sustained while riding as a passenger over the road of the appellant, on a train which was thrown from the track. The case is very fully stated in the opinions of the several Justices of this Court by whom the case was heard.

The cause was argued before BOWIE, C, J., and BARTOL and COCHRAN J. J. H. B. Latrobe, for the appellant:

The Court below erred in substituting its own instructions for those asked for by the defendants.

The first inquiry is as to the difference between the two sets of instructions. The difference, it is contended, is this fundamental and vital one. The defendants' instructions would have given to the jury the law applicable to the case leaving it to the jury to find the facts. The Court's instruction gives no law to the jury, virtually, but leaves it to the jury to settle, for the particular case, both the law and the facts, which is done when it is left to the jury to say whether the injury arose " from any neglect on the part of the defendants."

It is very true that, in ordinary parlance, " neglect," is a fact; but technically, and in the present connection this is not so. Neglect, here, is a question of both law and fact; and it was the duty of the Court below to have separated the law from the fact, and deciding the one, to have left the other only to the jury. Had the defendants' instructions been given, this would have been done, and the failure to do so is the error now sought to be repaired.

Railroad companies are under certain obligations to the public irrespective of the facts in any particular case, and which, when explained to the jury, furnish a certain key to the verdict. What these are, the Court here did not tell the jury. The Court told the jury that their verdict must be for the plaintiff, if they believed he was injured on the particular occasion, of which there was no doubt; unless the defendants show that they were not in fault; but the Court gave the jury no standard by which to determine whether the defendants were in fault or not.

It is true that the Court say, the jury must look in this connection to the character of railroad transportation; but the Court do not say in what respect, though the reference to the switch-tender, that immediately follows, warrants the conclusion, that it is to him and to his duties that reference is made. The instruction here, is, to say the least, indefinite.

What is asked, now, of the Court of Appeals, is, that it shall declare it to be the duty of the Court below, to instruct the jury, as matter of law, in regard to the obligations of the railroad companies to the public, looking to the question of negligence, and declaring what negligence is. And the best illustration of the defendants' views in this regard, is furnished by the instructions asked for in their behalf.

These instructions assume the right of the defendants to employ a speed customary on railroads for passenger trains to be a matter of law, leaving it to the jury to find, however, that they were traveling at such a speed; and they admit as matter of law, that there must be no defect in the road or the machinery or any neglect or misconduct in the agents, leaving to the jury the fact, whether there was either.

In rejecting the defendants' second instruction, there seems to have been clear error. The rejection of this instruction made the defendants responsible for the act of a wrong-doer, of which they had no notice, which could not have been anticipated, and which, when seen, it was impossible to obviate. The refusal of the 2nd instruction places the railroad companies in the category of common carriers of merchandize, making them insurers of life and limb in the one case, as they are of property in the other. The books are full of cases in this connection. The leading one is Stockton & Stokes vs. Salstonstall, in 13 Peters, 181, which it is believed fully sustains the views here taken. The Court there instead of leaving the case generally to the jury on the question of negligence, confines it to the facts in regard to the driver's competency, it being one of the obligations of the stage owners to have a competent driver who uses proper skill. This obligation was matter of law decided by the Court; whether it was complied with, was a matter of fact left to the jury. In the case of Crofts vs. Waterhouse, (3 d Bingham, ) 11 Eng. C. L. Rep., 119, referred to in Redfield on Railways, 325, the views of the defendants are still further sustained.

So in the case of Curtis vs. Drinkwater, 2 Barn. & Adol., 169, (22 Eng. C. L. Rep., 57,) cited at the same page of Redfield, it is said: " The obligation of a stage proprietor in regard to conveying passengers safely, has reference to the team, the load, the state of the road, as well as the manner of driving." See also Sharp vs. Grey, 9 Bing., 457, (23 Eng. C. L. Rep., 331.)

In Maryland, the views of defendants are fully corroborated by the case of Stockton vs. Frey, in 4 Gill, 414, where the plaintiff's first prayer, which was granted by the Court below, and sustained on appeal, instead of leaving the question of negligence generally to the jury, as has been done in the present case, states the obligations of the stage owners as matter of law, and confines the jury to the facts in connection therewith. This authority is full up upon the points now in dispute.

In the case lately decided in this Court, of Ewalt & Myers vs. Harding & Hopkins, 16 Md. Rep., 160, the general principle now contended for was fully sustained. The Court of Appeals reversing the Court below, declare it to be well settled, that whether diligence has been observed, is a question to be decided by the Court on facts to be found by the jury; or, which is the same thing, that it is the duty of the Court, when asked, to declare what is the standard of diligence, leaving it to the jury to say whether the facts show that the party has come up to it.

Negligence is a question of law growing out of the facts to be passed upon by the Court. Steam Nav. Co. vs. Hungerford, 6 G. & J., 291. What amounts to negligence is a question of law. Herring vs. Wil. & Bal. R. R. Co., 10 Iredell, 407. Moore vs. Cent. R. R. Co., 4 Zabriski, 269. McKenney vs. Neil, 1 McLean, 550, 552. Maury vs. Tal madge, 2 Id., 165, 167. Ingalls vs. Bills, 9 Met., 1. Hegeman vs. R. R. Co., 16 Barb., 353. Brooks vs. R. R. Co., 25 Id., 600.

With regard to the second instruction, its refusal, making as it does the defendants insurers, is so clearly against the well known current of authority, that a citation of cases is deemed altogether unnecessary.

George H. Williams, for the appellee, argued:

1. That the instructions of the Court are in exact conformity with the law, as pronounced by the Court of Appeals in the case of Stockton vs. Frey, 4 Gill, 416, 423, and were as favorable to the appellant as it could have desired; that they covered the whole case, and therefore it was not error to reject the appellant's prayers, even though in themselves correct. Pettigrew vs. Barnum, 11 Md. Rep., 451. Mutual Safety Ins. Co. vs. Cohen, 3 Gill, 481. Stokes vs. Saltonstall, 13 Peters, 191. B. & O. R. R. Co. vs. Resley, 14 Md. Rep., 444. Keech vs. Balto. & Wash. R. R. Co., 17 Md. Rep., 32. McElroy vs. R. R. Co., 4 Cush., 400. Steamboat New World vs. King, 16 How., 474.

2. That the Court properly rejected the defendant's first prayer:

(1st.) Because the instruction of the Court covered it.

(2nd.) Because it was calculated to mislead the jury, inasmuch as it assumes their customary speed not to have been reprehensible, and assumes also that the company were not bound to protect their road and guard it from the misconduct of others, even though such protection was perfectly feasible, and the prayer improperly restricts their legal liability.

3. That the defendant's second prayer was properly rejected, as well for the foregoing reasons as that there was no evidence to go to the jury on which it could have been based. There was not a particle of evidence in the cause from which the jury could have inferred any wrongful act contributing to the accident, by the misplacing of the switch, on the part of any one not connected with the defendant. There was no proof tending even to show that any human being had purposely deranged the lock or switch. The prayer is also faulty, because it assumes that the company were to be exonerated if the misplacement " could not have been anticipated, and when visible could not have been obviated by the utmost care and diligence."

Accidents would rarely, if ever happen, if they were anticipated; and the evidence in this cause conclusively demonstrates the absurdity of relying on an " indicator" for warning at a switch, when the indicator is only visible at two hundred and fifty yards distance, and at a point on a descending grade, where, an experienced engineer, Galloway, in the company's service eighteen years, says, a train could not be stopped under one thousand yards. This indicator is no protection at any time to trains coming from Washington at the customary speed of this company's train--the road is to them as safe without it as with it; and so long as the company rush their trains around a curve at such velocity as to make all precautions practically useless, it will be contended that they are liable in law for all accidents at that switch; and it is respectfully submitted, after the warning given by this case, they will be liable in morals also.

From the evidence in the record, there is...