McMahon v. Northern Cent. Ry. Co.

• Decision Date: 06 February 1874
• Citation: 39 Md. 438
• Parties: JOHN T. MCMAHON, by his next friend, MARTIN MCMAHON, v. THE NORTHERN CENTRAL RAILWAY COMPANY.
• Court: Maryland Court of Appeals

39 Md. 438

JOHN T. MCMAHON, by his next friend, MARTIN MCMAHON, v. THE NORTHERN CENTRAL RAILWAY COMPANY.

Court of Appeals of Maryland

February 6, 1874

APPEAL from the Baltimore City Court.

The case is stated in the opinion of the Court.

Exception.--The plaintiff offered five prayers, the first and second of which are set out in the opinion of the Court; the others are as follows:

3. Even if the jury shall believe that the said John T. McMahon was guilty of such want of ordinary care and prudence as ought under all the circumstances, to have been reasonably expected from one of his age and intelligence, in going on the track of the defendant, under the circumstances testified to before them; even should they also find a want of ordinary care and prudence on the part of the father and mother of the said John T. McMahon; yet, if the jury further believe, that if the agents of the defendant had used, in and about the management of the car or cars which injured him, ordinary care and prudence in giving usual and reasonable signals of moving said cars, and in keeping a reasonable lookout, that the accident would not have occurred, then the plaintiff is entitled to recover; provided they find the other facts set out in the plaintiff's second prayer.

4. If the jury believe from the evidence that the defendant placed their railroad cars along the line of Canal street, between Bank and Gough streets, in such a manner as to prevent the passage of foot-passengers, from one side of Canal street to the other; and shall further believe, that while occupying Canal street with their railroad cars, the defendant did not leave an opening or space of not less than twenty feet at or near the centre of the square between Bank and Gough streets or at equal distances from said last mentioned streets; and shall further find, by reason thereof, the plaintiff was injured, then the defendant was a wrong-doer, and the plaintiff is entitled to recover, unless the jury shall find there was such a want of ordinary care and caution by the plaintiff as ought, under all the circumstances, to have been reasonably expected from one of his age and intelligence, or want of ordinary care and caution on the part of the father and mother of the plaintiff.

5. That if, under the plaintiff's first, second, third or fourth prayers the jury shall find a verdict for the plaintiff, they are not at liberty to give, upon the evidence in this case against the defendant, exemplary, punitive or vindictive damages; but, in estimating the damages, they are to consider the health and condition of the plaintiff, before the injury complained of, as compared with his present condition in consequence of the said injury, and whether the said injury is in its nature permanent, and how far it is calculated to disable the plaintiff from engaging in those mechanical pursuits and employments for which, in the absence of said injury, he would have been qualified; and also the physical and mental suffering to which he was subjected, by reason of the said injury, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injury which the plaintiff has sustained.

The defendant offered two prayers, which will be found in the opinion of the Court. The City Court, (SCOTT, J.,) rejected the prayers of the plaintiff and granted those of the defendant. The plaintiff excepted and the verdict and judgment being against him, he appealed.

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

C D. McFarland, for the appellant.

There was evidence to support the plaintiff's first prayer, and it should have been granted. The cars had remained on the street for at least four hours, in a manner which violated an ordinance of the city, and, then were suddenly started without warning. If the plaintiff had attempted to pass in front of the horses or between the cars, either would have been the remote cause; while the sudden movement, without the usual signal, was the direct cause of the injury. An adult may be in a situation, and to such person it may be almost free from danger, while a like situation would be perilous to an infant of tender years. The defendant is required to exercise such degree of care, as is commensurate with the dangers of its business. Towards adults a certain well defined degree of care is exacted, and in determining it the intelligence which enables them to avoid injury is taken into consideration, while towards an infant not possessed of such intelligence, the degree of care must be higher. Balto. & Ohio R. R. Co. vs. State, use of Trainor, 33 Md., 544; The Phila. & Reading R. R Co. vs. Spearen, 47 Penn., 304.

The plaintiff's second prayer follows the language of the first prayer of the plaintiff in Fryer's Case, and should have been granted. Balto. & Ohio R. R. Co. vs. State, use of Fryer, 30 Md., 47. If this prayer had been granted, the question of the negligence of the defendant, the care and caution of the plaintiff, and that of his father and mother, would have been submitted to the jury, independent of the question of the proximate and remote cause of the injury. The plaintiff was injured by the cars of the defendant, while its agents had full control of them. The parents of the injured boy did all that the law required of them, in cautioning him to keep away from the cars and not to go under them.

The plaintiff's third prayer should have been granted. Even should it be successfully contended, that the plaintiff did not exercise such care as one of his age and intelligence ought to have exercised, and that his parents did not exercise ordinary care; yet had the defendant placed some one on the west side of the cars,--a reasonable requirement,--the accident which caused the injury would not, in all probability, have happened. If the defendant had attracted the plaintiff's attention, by blowing a horn, he would probably have avoided danger, for living near the cars, he doubtless knew the object of such a signal. It was especially the duty of the defendant to give notice of the movement of the cars, in view of the length of time they had remained on the street. Balto. & Ohio R. R. Co. vs. State, use of Trainor, et al., 33 Md., 544.

The plaintiff's fourth prayer should have been granted. If a corporation violates a regulation ordained for the protection of the lives and limbs of persons, it is highly culpable, and shows a reckless disregard of its obligations. It is prosecuting its business in an unlawful manner, and if injury happen, it should be held to a strict accountability. If by the act of one person another is injured, the rule of law applied to the person causing the injury, is more favorable to him, if in all things he is obedient to the laws of the State and of the municipal government; than if he openly violates them. The violation of this ordinance, it may be almost conclusively inferred, was the cause of the injury. Had its provisions been obeyed, the plaintiff would have had an unobstructed passage, in a nearly direct line from the junk store to his house, of which he could have availed himself and passed over in safety. Shearman & Redfield on Negligence, sec. 484, and note; Schmidt, an infant, vs. The Milwaukee and St. Paul R. R. Co., 23 Wis., 186; Liddy vs St. Louis R. R. Co., 40 Mo., 506; Bradley vs. Boston and Maine R. R., 2 Cush., 543; Wilson vs. Susquehannah Turnpike Co., 21 Barb., 79; Wright vs. Malden and Melrose R. R. Co., 4 Allen, 290; Wanless vs. The North Eastern R. R. Co., 6 Queen's Bench, 487, (L. R.)

The plaintiff's fifth prayer should have been granted. Bannon vs. Balto. and Ohio R. R. Co., 24 Md., 115.

The defendant's prayers were improperly granted. Negligence is generally a question of fact for the jury. In this case there is no prominent or decisive act unconnected with other circumstances, in regard to the effect and character of which, no room is left for ordinary minds to differ, which is necessary in order to make it an exception to the general rule. The attending circumstances of the transaction of which there were a variety, should have been submitted to the consideration of the jury. Balto. and Ohio R. R. Co. vs. Fitzpatrick, 35 Md., 46; Gay vs. Winter, 34 Cal., 153; North Penn. R. R. Co. vs. Mahoney, 57 Penn. State Rep., 187; Morgan vs. Bitzenberger, 3 Gill, 355; Lynch vs. Nurdin, 41 Eng. Com. Law, 422; Fulton vs. Maccracken, 18 Md., 542.

The manner and circumstances under which the plaintiff was sent upon the street, was not of itself such negligence as will prevent a recovery, nor is such care required of a child as of an adult. Honegsberger vs. The Second Av. R. R. Co., 1 Daly's Rep., 89; Robinson vs. Cone, 22 Vermont, 221; Gardner vs. Grace, 1 Foster & Finlason, 359; Mulligan vs. Curtis, 100 Mass., 512; Boland and Wife vs. Missouri R. R. Co., 36 Mo., 484; Birge vs. Gardiner, 19 Conn., 507; Rauch vs. Lloyd and Hill, 31 Penn. State Rep., 358; Penn. R. R. Co. vs. Kelley, 31 Penn. State Rep., 372; Drew vs. Sixth Av. R. R. Co., 26 N. Y., 52.

Bernard Carter and Wm. Henry Norris, for the appellee.

The main question is as to the correctness of the Court in granting the defendant's prayers, or either of them; for if the Court did right in granting either one of the defendant's prayers, there is an end of the appeal; and it is immaterial whether the Court erred in granting the other of the defendant's prayers, or whether or not the plaintiff's prayers abstractly considered, contained correct propositions of law.

Upon the state of facts disclosed by the record, and the inferences reasonably deducible therefrom, the defendant had a right to ask the instruction contained within its first prayer, in perfect keeping with the principle announced in 31 M...