Dietrich v. Baltimore & H.S. Ry. Co.

• Decision Date: 11 July 1882
• Citation: 58 Md. 347
• Parties: ADAM DIETRICH v. THE BALTIMORE AND HALL'S SPRINGS RAILWAY COMPANY. ANDREW J. DIETRICH v. THE BALTIMORE AND HALL'S SPRINGS RAILWAY COMPANY.
• Court: Maryland Court of Appeals

58 Md. 347

ADAM DIETRICH v. THE BALTIMORE AND HALL'S SPRINGS RAILWAY COMPANY.

ANDREW J. DIETRICH v. THE BALTIMORE AND HALL'S SPRINGS RAILWAY COMPANY.

Court of Appeals of Maryland

July 11, 1882

The cause was argued before STONE, GRASON, MILLER, ALVEY ROBINSON and RITCHIE, J.

William Rowland, and Malcolm H. Johnston for the appellants.

The company invited the accident by the grossest sort of negligence in running a car with a step missing from the place where it usually was, and where but for such negligence, it would have been. There was not a want of ordinary care on the part of the appellant Andrew, directly contributing to the accident. B. & O. R. R. Co vs. State, use of Trainor, 33 Md., 542, 553-4.

The Court of Appeals in McMahon vs. The Northern C. R. R Co., 39 Md., 449, says "cases may and sometimes do occur in which the uncontradicted evidence proves such a glaring act of carelessness on the part of the plaintiff as to amount in law to contributory negligence, and in such it is the duty of the Court, when requested, to decide the question without the intervention of a jury." But it is submitted that there is no such glaring act of carelessness on the part of this appellant. It is not a very careless act for a boy fourteen years old to get on the front platform of a horse car going slowly. These horse cars are not to be invested with all the dangers of a steam railroad train in motion.

It should have been left to the jury to decide whether, under all the circumstances in this case, the appellant (Andrew,) did not use all the care and caution that could have been reasonably expected from one of his age and intelligence. B. & O. R. R. vs. State, use of Fryer, 30 Md., 47; Balto. City P. R. W. Co. vs. McDonnell, 43 Md., 534; B. & O. R. R. Co. vs. Breinig, 25 Md., 378; Morgan vs. Ills. & St. Louis Bridge Co., 5 Dillon, C. Ct., 96; Donoho vs. Vulcan Iron Works, 7 Mo. App., 447; Brennan vs. Fair Haven & Westville R. Co., 45 Conn., 284, 299.

The case of Casey vs. N.Y. Central, &c., R. R. Co., 6 Abbotts' New Cases, page 104, was an action for causing the death of a girl, in the fifteenth year of her age, of the weight and size of a woman. The Court say, "the Judge charged that the deceased was a bright girl of fourteen, and that the jury were to exact of her the care and judgment which a bright girl of fourteen years of age ought to have exercised under the circumstances of the case--to which the defendant excepted. He also charged absolutely that she ought to have looked before she went upon the track. I think, as applicable to the facts of this case, that the rule which the Judge laid down was correct, and that the defendant was not entitled to have the jury instructed, that she was to be held to the same care and prudence as an adult." Pages 127 and 128. See also further remarks of the Court, pages 128 and 129, of same report. See also O'Mara vs. Hudson River R. R. Co., 38 N. Y., 447; Mowrey vs. Central City R. R., 51 N. Y., 667; Reynolds vs. N.Y. Central R. R. Co., 58 N. Y., 252; McGovern vs. N.Y. Central R. R. Co., 67 N. Y., 421; Rockford, &c. R. R. Co. vs. Delaney, 82 Ill., 198; McMillan vs. The B. & M. R. R. Co., 46 Iowa, 231; Railroad Company vs. Gladmon, 15 Wall., 401, 408; St. Louis & Southeastern C. Co. vs. Valerius, 56 Ind., 518; Bronson vs. Town of Southbury, 37 Conn., 202, 203.

The same amount of prudence and care cannot be expected from a boy of fourteen years of age, that would be from a person of more mature years. Any boy, under the circumstances, would have acted just as Andrew Dietrich did. The invitation of the driver "get on here," was sufficient to overcome any hesitation he might have felt about running the risk. Apply this to the case of the father; when he sent his boy to the city he had a right to expect that neither by the act of the company, nor of its agents, would his boy be lead into danger. His boy was injured by and through the act of an agent of the company, drawing him into a trap, which the gross negligence of the company had set for him.

The invitation of the driver and the condition of the step was the proximate cause of the injury. "If the negligence of the defendant was the proximate, and that of the deceased the remote cause of the injury, the action is maintainable, notwithstanding the deceased may not have been entirely without fault. This principle is well settled by many well considered cases. The mere negligence or want of ordinary caution on the part of the deceased, would not dis-entitle the plaintiff to recover, unless it was such that, but for such negligence or want of ordinary caution, the misfortune would not have happened. Nor, if the defendant might, by the exercise of care on its part have avoided the consequences of the neglect or carelessness of the deceased." N. C. Ry. Co. vs. State, use of Price, 29 Md., 420, 435, 436.

Contributory negligence does not dis-entitle an infant to recover for any injury sustained, otherwise than where such injury is sustained entirely by the negligence of the infant. Gardner vs. Grose, 1 F. & F., 359; Lynch vs. Nurdin, 4 P. & D., 672; Coleman vs. Southeastern R. Co., 12 Jur. N. S., 944.

Under the circumstances in this case, the age of the boy, the invitation of the driver, &c., the company is liable.

In the case of Brennan vs. The Fair Haven Railroad Company, 45 Conn., 284, the plaintiff, a boy ten years and eleven months old, was riding free on the front platform of a horse railroad car, with the knowledge of the conductor and driver, the latter having requested him to hand in a package at a place they were to pass. Before quite reaching the stopping place for this purpose, the plaintiff jumped off the platform and fell under the car and was hurt, it was held that the plaintiff could recover. Lovet vs. Salem & South Danvers R. Co., 9 Allen, 557; Kline vs. C. P. R. Rail. Co., 37 Cal., 400; Lambeth vs. N. C. Railroad Co., 66 N. C., 494.

The relation of carrier and passenger undoubtedly existed. Neither an entry into the cars upon a railroad, nor the payment of the fare, is essential to create the relation of carrier and passenger. Gordon vs. Grand Street & Newtown Railroad Co., 40 Barb., 546; Jeffersonville Railroad Co. vs. Reilly, 39 Ind., 568.

If the injury was the result of negligence on both sides, then, as the passenger's own fault was contributory to it, he can recover nothing unless the managing agents saw his perilous condition, and might, by ordinary diligence have prevented the injury. Kentucky Central Rail. Co. vs. Dill, 4 Bush, (Ky.,) 593.

W. Hall Harris, and J. Morrison Harris, for the appellee.

The proffered testimony of the witness, John H. Dietrich, was properly rejected by the Court below. It was hearsay, and inadmissible under the settled rules governing such testimony. It was further inadmissible because it was not part of the res gestæ. It is proved to have occurred twenty minutes or half an hour after the accident, and not " dum fervet opus. " Bradford & Williams vs. Williams, 2 Md. Ch. Dec., 3, 4; Franklin Bank vs. The Navigation Co., 11 Gill & Johnson, 28, 32, 34, and cases cited.

So also was the statement of the driver himself not " original," but "hearsay" testimony. And it does not bind the defendant company, because "his declaration was no part of the driver's act for which his employer was sued, it was not made at the time of the act, so as to give it quality and character," but "was made after the alleged wrong was complete," and would have submitted to the jury a material fact, other than that complained of, upon the mere declaration of an agent of the defendant. Luby vs. R. R. Co., 17 N.Y. Reps., 131, 133, &c. Furst vs. R. R. Co., 72 N.Y. Reps., 542; R. R. Co., vs. Hinton, 33 Indiana, 335, 354; Laur vs. Bryant, 9 Gray, 245, 247; Sims vs. R. R. Co., 28 Georgia, 94; Lund vs. Tyngsborough, 9 Cush., 36; Moore vs. Meacham, 10 N. Y., 210; Enos vs. Tuttle, 3 Conn., 250; 1 Thompson on Negligence, 398.

Declarations of an engineer, some time after accident, are inadmissible,-- defendants were in no way bound by his confessions, they were not within the scope of his agency and were made some days afterwards; they were therefore only the declarations of a third person, and mere hearsay. Robinson vs. R. R., 7 Gray, 92, 96.

Agent's declaration does not bind principal unless made at the very time, and concerning the res gestæ. Story on Agency, secs.135, 136, 137.

Declarations of an agent at the time of the transaction are binding on the principal, but what he says at another time is not admissible. Thallheimer vs. Brinkerhoff, 4 Wend., 394. Nor are statements of a deputy sheriff not made in the performance of an official act. Baker vs. Binninger, 14 N. Y., 270. So also this Court has held, that declarations by a third party though made immediately after the commission of an assault, were inadmissible. Byers vs. Horner, 47 Md., 32, 33.

No contractual relation existed between the parties, and only reasonable care and diligence was obligatory on the defendant. B. & O. R. R. vs. State, use of Miller, 29 Md., 260; B. & O. R. R. vs. Breinig, 25 Md., 378.

Plaintiff is not entitled to recover if the accident could have been avoided by the exercise of such care by him as might, under all the circumstances, have been reasonably expected from one of his age and intelligence. In other words, if there was neglect or default on the part of the boy or the absence of that prudence which boys of like age and capacity usually exhibit, the defendant is not liable, although, by the exercise of extraordinary care on its part, the accident might have been prevented. State, use of Coughlan vs. B. & O. R. R. Co., 24 Md., 84, 103. Again: No justification of the plaintiff's act can be based upon the invitation of...