Western Maryland R. Co. v. Carter

• Court: Maryland Supreme Court
• Writing for the Court: ALVEY, J., delivered the opinion of the Court.
• Citation: Western Maryland R. Co. v. Carter, 59 Md. 306 (Md. 1883)
• Decision Date: 01 February 1883
• Parties: THE WESTERN MARYLAND RAILROAD COMPANY v. FRANK CARTER.

59 Md. 306

THE WESTERN MARYLAND RAILROAD COMPANY v. FRANK CARTER.

Court of Appeals of Maryland

February 1, 1883

APPEAL from the Circuit Court for Carroll County.

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

First Exception.--The defendant offered to prove by John H. Baum, a competent witness, who was foreman of the sixth division of the defendant's road, that he had, on two or three occasions previous to the accident by which the colt was killed, notified Airheart Winters, (who testified in this cause, on the part of the plaintiff,) that said colts were in the habit of trespassing on the defendant's roadway, and that they were in the habit of going in and out of said field at the crossing, and across the defendant's roadway, but the plaintiff objected to said proof offered and the Court (HAYDEN, J.,) sustained the objection, and refused to permit it to be given. The defendant thereupon excepted.

Second Exception.--The plaintiff offered five prayers and the defendant nine. The Court rejected the prayers both of the plaintiff and defendant, and in lieu thereof gave its own instructions. The defendant excepted to the rejection of its prayers and to the instructions given by the Court.

The verdict and judgment were in favor of the plaintiff, and the defendant appealed.

The cause was argued before MILLER, YELLOTT, STONE, ALVEY IRVING, and RITCHIE, J.

Charles B. Roberts, for the appellant.

George M. Pearce, and J. A. C. Bond, for the appellee.

ALVEY J., delivered the opinion of the Court.

This action was brought to recover of the defendant the value of a colt, alleged to have been killed on the railroad of the defendant by the negligence of its employes.

The first question presented on the record arises upon the rejection of evidence offered by the defendant, and which was the subject of the first bill of exception. But the materiality of the evidence offered is not perceived; and besides it was made quite unimportant to the defendant, even if it had been material, inasmuch as the same facts sought to be proved had been given in evidence on the part of the plaintiff. The defendant, therefore, was in no manner injured by the ruling of the Court, as stated in this bill of exception.

The main question in the case arises upon the prayers offered by the defendant and which were rejected by the Court, and upon the instructions of the Court given in lieu of the prayers rejected.

The statute upon this subject provides, that "Railroad companies shall be responsible for injuries, resulting in death or otherwise, inflicted upon any stock, as cattle, horses, sheep, hogs, &c., or by fire occasioned by their engines or carriages, upon any of their roads, and the branches thereof, unless the said companies can prove, to the satisfaction of the justice or other tribunal before which the suit may be tried, that the injury complained of was committed without any negligence on the part of the company or its agents." Code, Art. 77, sec. 1.

This statutory provision has been under consideration in several cases in this Court, and the construction adopted, according to the plain language of the statute, is that when stock is killed or injured by a railroad train, the law imputes negligence to the agents of the company, and in order to relieve itself from liability it is incumbent upon the company to show that the damage complained of was the result of an accident that could not have been avoided by the use of reasonable and proper care, and that such care was in fact exercised to avoid the injury. The common law rule, which required the plaintiff to show affirmatively that the injury was caused by the negligence of the defendant, is changed by the statute, in cases like the present, and the onus of proof, instead of resting on the plaintiff, to show negligence, is imposed on the defendant, to show the absence of negligence, on its part, by way of defence. The statute however, has not changed the common law rule in respect to contributory negligence on the part of the plaintiff in such actions. If, therefore, the plaintiff has, by his own negligence or misconduct, contributed, directly and immediately, to the production of the injury complained of, he is regarded as the author of his misfortune, and he is as much precluded from recovering damages therefor since the statute as before. Railroad Co. vs. Lamborn, 12 Md., 257; Keech vs. Railroad Co., 17 Md., 32. But if he merely allow his stock to escape from his enclosure, and to stray at large unattended, and thus get upon the railroad of the company and there be injured,--while the entry of the stock upon t e road may be an act of negligence, as well as a trespass, on the part of the plaintiff, in thus allowing his stock to stray at large unattended, yet such negligence is not of that direct and proximate character as to be so contributory to the production of the injury as to preclude the plaintiff the right to recover, if the accident could have been avoided by the use of reasonable and proper care on the part of the defendant or its agents, under the circumstances of the case. Railroad Co. vs....