Western Maryland R. Co. v. Shivers
| Decision Date | 20 June 1905 |
| Citation | 61 A. 618,101 Md. 391 |
| Parties | WESTERN MARYLAND R. CO. v. SHIVERS. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Carroll County; W.H. Thomas, Judge.
Action by Maud E. Shivers against the Western Maryland Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE, and SCHMUCKER, JJ.
George R. Gaither, for appellant.
Charles E. Fink and James A. C. Bond, for appellee.
This is a personal injury case. The appellee, who was traveling from Hagerstown to Union Bridge in one of the coaches of the appellant company, was seriously hurt by reason of the car suddenly leaving the rails, and, after running over the cross-ties for several hundred feet, plunging down a precipitous mountain declivity. The trial resulted in a verdict for the appellee, and upon that verdict a judgment was entered against the appellant. From that judgment this appeal was taken. The only questions which the bill of exceptions contained in the record brings up for review are those arising on the prayers for instructions to the jury.
The main contention of the appellant is that a vis major caused the car to leave the rails; that the resultant injury was due, therefore, not to negligence, but to an unavoidable accident, which furnished no cause of action; and that upon the evidence adduced by the appellant the trial court should have so instructed the jury as a matter of law. There are some subsidiary propositions, which will be better understood after the controlling one has been discussed, and which, for that reason, will be stated and considered later on.
It is undoubtedly true that a carrier is not an insurer of the safety of his passengers. He is bound to use the utmost care and diligence which human foresight can employ. City Pass. Ry. Co. v. Nugent, 86 Md. 356, 38 A. 779. This is the limit and the measure of the duty which he owes to the passenger. If, in spite of the observance of that degree of precaution, an injury happens to the passenger from an act of God or a vis major, no action, in such circumstances, can be maintained. Negligence, and not the mere fact of an injury is the foundation of the passenger's right to recover. Direct evidence of negligence is not necessary, because negligence, like any other fact, can be established by the proof of circumstances from which its existence may be inferred. The relation of passenger and carrier being established, then, if it should appear that the accident occurred from some abnormal condition in the department of actual transportation, the law raises the presumption that the abnormal condition had its origin in, or was referable to, some antecedent or coincident omission of an imposed duty. Such an omission is negligence, and such negligence when producing an injury to the passenger, fastens a responsibility on the carrier, unless it be satisfactorily shown that that abnormal condition proceeded from some source in no manner attributable to the carrier. This is the principle which the appellant's first prayer was designed to invoke; and we have now to inquire whether the form of the prayer and the circumstances of this case would have warranted the court in granting it. The prayer is in these words: "The defendant prays the court to rule as a matter of law, upon the pleadings and evidence in this case the defendant has by competent evidence proven that the accident in this case was not due to the negligence of the defendant, its employés or agents, and that the plaintiff is not entitled to recover." The court declined to grant this prayer. It will be observed that the prayer refers to the pleadings and to all the evidence in the case, and then asks the court "to rule as a matter of law" that the defendant has by competent evidence proven that the accident was not due to the negligence of the defendant. As the pleadings rely upon several alleged acts of negligence they must be examined before considering the prayer. The first count of the declaration charges that the injury sustained by the appellee was due to the derailment and overturning of the car and its descent down a steep embankment, "caused by the negligence of the defendant and its servants." The second count avers that the injury happened in consequence of the misconduct and default of the railroad company in negligently and wrongfully permitting its roadbed and tracks to be out of repair, and to be in a broken, defective, and dangerous condition; and also by reason of the wrongful act, neglect, and default of the employés of the company in charge of the coach or car. The third is substantially a repetition of the second count, except in this: that it enlarges the averment of negligence by including not only the employés in charge of the derailed car, but those in control of the train. It thus appears that there are three distinct imputations of negligence. The first is the derailment of the car; the second, the broken rail and the neglect and default of the employés in charge of the car; and the third, the broken rail and the neglect and default of the employés in charge of the car and in charge of the train. To which of these alleged causes was the accident due? The prayer asked the court to rule as a matter of law that the appellant was not answerable at all, and therefore was not liable for the consequences of any of these asserted acts of negligence; not because the appellee had failed to adduce any legally sufficient evidence to support the declaration, but because the appellant had "by competent evidence proven that the accident was not due to" its negligence. The structure of the prayer is entirely consistent with the theory that the appellee had presented evidence tending to sustain her cause of action. But in spite of that unexpressed, but plainly implied, theory, it asks a specific ruling, as a matter of law, to the effect that the company had by competent evidence proved that it had not been guilty of negligence. The court was thus requested to take the place of the jury, and to determine, after balancing conflicting evidence (and there was such evidence), that the testimony adduced in exculpation of the appellant outweighed that which inculpated it. We say the structure and import of the prayer are in complete harmony with the theory that some evidence had been offered tending to fasten the charge of negligence upon the appellant, because the court was not asked to say that no such evidence had been introduced by the appellee, and because the prayer refers to and includes all the evidence in the case, and sets up by way of exculpation solely and exclusively the facts established, or assumed to have been established, by the appellant. The presumption of negligence arising from an injury to a passenger when the injury is occasioned by an abnormal condition in the department of actual transportation is evidence sufficient to entitle a plaintiff to recover if the abnormal condition be not unequivocally referable to a nonactionable accident or to a vis major. The facts which give rise to such a presumption cannot justify an opposite inference, because inconsistent presumptions cannot spring from or be founded on the same bases. As a presumption is simply an inference or conclusion logically deduced from known data, it is obvious, when contrary or contradictory conclusions are asserted as resulting from the same premises, that one or the other, or possibly both, must be erroneous. But it is competent for the carrier to show by affirmative evidence that the abnormal condition which occasioned the injury was referable exclusively to a cause which the law denominates an unavoidable accident or a vis major. When it is satisfactorily established that a vis major occasioned the abnormal condition which produced the injury, then the presumption that the...
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