Bankard v. Baltimore & O.R. Co.

• Decision Date: 23 February 1871
• Citation: 34 Md. 197
• Parties: JACOB J. BANKARD v. THE BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: Maryland Court of Appeals

34 Md. 197

JACOB J. BANKARD v. THE BALTIMORE AND OHIO RAILROAD COMPANY.

Court of Appeals of Maryland

February 23, 1871

APPEAL from the Superior Court of Baltimore City.

The case is sufficiently stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON and ROBINSON, J.

William C. Schley and William Schley, for the appellant.

The defendant, under the Act of 1835, chapter 395, sec. 14, was bound by duty, to provide sufficient cars and engines at every depot, for the prompt transportation of all lading that might be offered; and the fact, that they had not sufficient was prima facie evidence of neglect of duty.

The defendant had established a time table, and delay on the road in transportation, was prima facie evidence of neglect. It behooved the defendant, by clear proof, to excuse the delay. No such proof was adduced.

The contract with the Government of the United States, by which they acquired a preference in transportation, furnishes no excuse to the defendant. It is not the same as if the road had been seized by military power. Upon entering into that contract, the defendant should have made ample provision for the performance of its duty to the public; or, at least should show that, upon deliberation, they honestly concluded that such provision as they were making, would be ample and sufficient, or that it was impossible to procure a larger supply than they had actually provided, after due efforts.

The first prayer of the plaintiff raised the question as to the effect of the paper, called a release, signed by Porter, and which related to the third lot of cattle. It affirms, that if the jury should find negligence and misconduct, on the part of the defendant, its servants and agents, resulting in the infliction of the damage specified, that said paper was no bar to recovery.

This prayer ought to have been granted. There was evidence to go to the jury of negligence and misconduct, even of gross negligence and actual misfeasance. The paper is not a release. If it can operate, at all, it can only operate as a special agreement. It is, on its face, void on grounds of public policy, where a common carrier is sued, upon his common law liability, or upon his statutory duty. In a case, where the suit is founded on the special agreement itself, as the sole cause of action, the plaintiff is bound by its provisions. He cannot claim under it, and against it. McCann vs. Balto. & O. R. R. Co., 20 Md., 202. The defendant's prayer concedes that negligence, if proved, would have charged defendant; but it asserts that there was no evidence of negligence. Even if gross negligence was necessary it is covered by the word misconduct; which implies misfeasance--not mere negligence, which might be, simply, non-feasance; but wilful wrongful action. Phillips vs. Clarke, 89 E. C. L. Rep., 156; Hinton vs. Dibbin, 2 Adl. & Ell. N. S., 646, (42 Eng. C. L. Rep., 849;) Redfield on Carriers, &c., secs. 28, 40, 152 to 167, and 168 to 179; 1 Parsons on Contracts, 711 n. (h.;) Angell on Carriers, sec. 245; 2 Greenl. on Ev., sec. 215.

The defendant's prayer is very comprehensive and open to many objections. It applied to the whole case; covered all the evidence, and all inferences which the jury might freely draw from the evidence, and denied in toto the plaintiff's right to recover.

Upon analysis of the prayer, it will be seen, that it assumes, as matter of law, that the defendant is not responsible, for any negligence or want of care, in preparation for transportation; but only for negligence in transportation; that the burden of proof of such negligence is on the plaintiff; and that there was no evidence to justify the jury, in finding a verdict for the plaintiff. It says nothing of the effect of the paper called a release; nothing as to the preference accorded to the Government in transportation; nothing as to the insufficiency of cars and engines; nothing as to the collision.

The occurrence of delay, in prompt transportation, threw on the defendant the burden of proving, that it was not the result of negligence in preparation; or of negligence in actual transportation, on the road.

The occurrence of a collision is prima facie evidence of negligence, and requires explanation; and all persons, in the service of the company should be produced to show the facts, to overcome this presumption of fault,

John H. B. Latrobe, for the appellee.

The obligations of a common carrier may be modified by special contract. This is settled law. In this case these obligations were modified for a valuable consideration.

Had the plaintiff, in the absence of any special contract, paid the ordinary rates of transportation, the receipt of the defendants for the cattle loaded on their cars would have bound them as insurers; and so far as delay was involved, the question whether it was an unreasonable delay or not, under all the circumstances, would have been an open one before the jury. But the plaintiff waived his rights in this respect, in consideration of a reduction in the rates. He took the case out of the category of carriers' contracts at common law. He placed it on the footing of any ordinary contract, and before he could recover, it was incumbent on him to prove a failure of the defendants in some one particular to come up to the full measure of their obligations.

BARTOL C.J., delivered the opinion of the Court.

The appellant, plaintiff below, claims damages in respect of four lots of cattle transported for him on the railroad of the appellee.

In lieu of formal pleadings the case was tried under an agreement, and statement of facts set out in the record.

After the evidence was concluded the plaintiff offered three prayers which were rejected, and the defendant one prayer which was granted; and upon application by the counsel for the plaintiff for leave to argue the case before the jury, the Court below refused such application upon the ground that there was no evidence in the cause legally sufficient, from which the jury could legitimately find a verdict for the plaintiff.

Thereupon the plaintiff...