41 Md. 268 | Md. | 1875
delivered the opinion of the Court.
Charles Woodward, a conductor of a freight train, had his leg crushed by a collision. The accident occurred on the appellant’s road, at a point about one mile and a-half east of the Point of Rocks, and about four o’clock on the night of the 24th of September, 1869. His train was the second in a convoy of four going west, and was run into by the third and following train. The collision was slight, not displacing any of the cars from the track, and but little delay occurred in the movement of the trains. As soon as practicable, after the accident, he was placed on the tender of the nearest engine and carried to the Point of Rocks, accompanied and attended by Stoddard, the con
1st. That there was such negligence on the part of the company as to make them responsible, upon the assumption that the injury received by the collision was fatal and the immediate cause of the death.
2nd. Assuming the injury was not in its nature fatal, and that the proximate cause of the death was the subsequent hemorrhage occuring during the transportation to Frederick, still the company is responsible, if such hemorrhage occurred by reason of the gross neglect of their agents or employes in charge, of him during this transportation. v
; and injury or loss results from the grossly negligent or f improper manner in which he performs it, he is liable. We understand this argument to assume (as it must, to be of any avail in the present case) that if the jury find that the company, through some agent having authority to bind them to such an undertaking, undertook not only to carry Woodward from the Point of Rocks to Frederick free of charge, but also to provide an attenddnt to take care of him and carry out the physician’s instructions in regard to his treatment while on the way, then the company is liable if his death was caused by the gross negligence or want of ordinary care on the part of such attendant. So understood, the argument places the liability upon the law of bailments, and the case of Coggs vs. Bernard and other authorities defining the duties and responsibilities of mandatories are cited in its support. This is certainly the only possible ground on which the company could be made liable, and whether it can be applied to the present cause and action may admit of grave doubt. Certain it is, that this is a question of great importance, and is attended with such difficulty, that no opinion upon it ought to be expressed by this Court unless it is clearly and directly presented for our determination, so that it can
Having thus stated our views of the law governing the main features of the case as the record presents it, we must now dispose of the numerous exceptions taken at the trial. As the judgment must be reversed for errors in some of the rulings against the appellant, it is made our duty under a provision of the Local Laws, (2 Code, Art. 11, sec. 41,) to decide the exceptions taken by the appellee as well as those taken by the appellant.
In the appellee’s first and second exceptions, the Court refused to allow the plaintiff to ask the witness, Thompson, the engineman of train No. 8, which caused the collision, whether he was ever before suspended by the company on the charge of negligence, and if yea, when? and whether his train ever ran into any other train, and if so, when, and where? In the appellant’s first, second, and third exceptions,* the same witness was asked by the plaintiff, whether, while in the service of the company, he was present in any accident in which his train caused loss of life, limb, or property, and if yea, when, where, and how often? And having stated he was off duty on one other occasion, he was asked “what for?” and further to state all the accidents in which his train was in any way connected, of which the company had knowledge. The plaintiff proposed to follow this up by showing that in the instances the witness might mention,.there was negligence on his part which was brought to the knowledge of the company prior to the happening of the present accident. The Court allowed these questions to be put and answered. There may be, as was argued at bar, an inconsistency between these two sets of rulings. But this becomes immaterial in view of the testimony which the witness gave. He
In the appellee’s third exception the Court refused to permit the plaintiff to ask a witness “ if the time between the trains had been ten instead of five minutes, by the regulations of the company, is it as probable, that the accident would have occurred?” We do not perceive what relevancy an affirmative answer to this question would have had to the case. The true question is not what would have been probable if a different regulation as to time had been prescribed, but whether the actual regulation of an interval of five minutes at the schedule speed was a reasonable regulation with respect to tbe safety of the employes' in charge of the trains. As to this no testimony was given or offered, and the jury could not be allowed, without any testimony of witnesses competent to speak on the subject, to take the time-tables and regulations, and pass their judgment on this question. If it depends on the construction and effect of these alone, it should be determined by the Court, and with regard to it we think there is no difficulty. According to the schedule speed on this part of the road, an ’interval of five minutes would keep the trains fully one mile apart. This, with the other rules respecting the use of lights and other signals and precautions, and prescribing the duty of employes in almost every emergency, would, if observed by them, render the occurrence of such accidents as this almost impossible. It certainly cannot be said that the time-tables in connection with such regulations, were not arranged by the company with such reasonable care and caution as to be consistent with a reasonable regard to the safety and well being of their employes. The rulings in this exception, and in the rejection of the appellee’s second prayer on the same subject were correct. In this connection it has been argued that the time-tables require each of the trains running in convoys, to arrive at stations at the same time, and therefore,
In the appellee’s fourth exception the Court refused to allow the plaintiff to ask the witness, Thompson, for the purpose of laying the foundation for impeaching him, whether he had not made a certain statement to another party different from what he had testified to when under examination by the defendant. This witness had been called by the plaintiff in the first instance and had given testimony as to when, where, and how the collision had occurred, and as to other matters connected with the accident. In this state of case we are of opinion it was not competent for the plaintiff at any stage of the trial, or of his examination to impeach the credibility of this witness. The general rule on this subject, with the exceptions to It, is very clearly stated in 1 Greenleaf’s Evidence, secs. 442, 443, 444. We refer also to Queen vs. The State, 5 H. & J., 232, and Franklin Bank vs. Steam Navigation Co., 11 G. & J., 36, where questions very similar to the one before us have been decided by our predecessors. There was no error in this ruling.
In the appellant’s fourth, fifth, sixth and seventh exceptions, the Court overruled the defendant’s objections to the
In the seventh, one of the same witnesses was asked, upon a hypothetical statement of the case, to what cause he would have attributed Woodward’s dying condition when he reached Frederick, and he said to the neglect, inattention, or ignorance of the persons in charge of him. The objection now made to the admissibility of all this testimony, is that there is no averment in the declaration, nor specification in the “ particular ” of the claim furnished under the 3rd section of Art. 65 of the Oode, which would authorize its admission. We are of opinion, this objection, so far.at least, as the testimony in the seventh exception is concerned, is well taken. This testimony supports the second branch or theory of the case. Its object was to charge the company with negligence in the carrying of Woodward to Frederick, and to show that that negligence was the cause of his death. By a fair reading of the declaration it charges simply that Woodward, while lawfully on one of their cars, was hilled through the wrongful act, neglect and default of the defendant, and the “ particular ” of the- claim furnished under the statute, has no broader scope. Instates that Woodward, while lawfully on one of the defendant’s cars as conductor of a freight train, was, by reason of the wrongful act, neglect, and default of the defendant “ struck and injured by a locomotive engine of the defendant, and in consequence of being so struck and injured afterward ” on the same day “ died.” They both aver that the death was the necessary result of the injury, and make no claim that the subsequent negligence in the
. By the custom and regulations of the company, trains in convoy were equipped, each with one engineman, one fireman, one conductor, and one brakeman. If Woodward had knowledge of this cxrstom and practice at the time of his employment and afterwards,, and with such knowledge, continued for eight or nine months in his employment as conductor on trains in convoys thus equipped, and also knew that Thompson’s train following his on the night of the collision was equipped in the same manner, then such knowledge on his part would prevent a recovery in this action, on account of any supposed deficiency in equipment in this respect. Hence the Court was right in rejecting the appellee’s first, and in granting the appellant’s ninth prayer, which refer to that subject.
There was no error in granting the appellant’s first prayer. It correctly states what was essential in order to fasten liability upon the common employer. The appellant’s second prayer, as we understand it, is, and must be confined to the first theory of the case. It asserts in effect, that if the jury find that Woodward died from the injury he received hy the collision, (that is, if they find such injury was fatal,) and was occasioned by the negligence of the engine-
The appellee’s sixth and seventh prayers are disposed of by what we have already said. The sixth is in the exact terms of one of the instructions approved in Price’s Case, and the seventh adopts the language of the Court in that decision. Each of them applies the rule -in that case to this without restriction. It in effect, instructs the jury, that it was the duty of the company’s agents and servants under the rule there announced, to take charge of, and carry the injured man, not only to the Point of Rocks, but from thence to Frederick city. We have expressed our views on that subject, and for the reasons stated there was error in granting these prayers and none in rejecting the
The appellant’s fourth prayer is very nearly correct. The only objection to it is, that it does not put to the jury with sufficient point and distinctness to find that Stoddard accompanied and attended Woodward at the latter’s request, or was allowed to g'o and take care of him because of such request. If the company’s agents, at his request carried or permitted Woodward to be carried on this train to Frederick free of charge, or acceded to such request from motives of kindness, or because he had been injured while in the company’s employment, and also permitted Stoddard to accompany him, and attend to him, because Woodward had requested him as his friend to do so, it is quite clear the company could not he held responsible for Stoddard’s negligence, for in that case he was Woodward’s own attendant, and not the company’s servant. Modified as indicated, this prayer would announce a correct legal proposition.
The appellee’s eighth prayer, which was granted, correctly states the measure of damages. The appellant’s fifth, sixth, seventh and eighth prayers were rightly refused. Each, of them asserts that certain acts and conduct of Woodward amounted in law to contributory negligence. This is not, in our opinion, a case in which the Court would be justified in interfering in this way, but one in which the question of such negligence should be left to the finding of the jury, upon all the facts and circumstances in evidence before them. Besides, as we have decided that the plaintiff has failed to prove any negligence on the part of the company warranting a recovery on the first theory of the case, any instruction upon this dependent and subordinate defense of contributory negligence on the part of the deceased, would have been entirely
For the errors above stated in the rulings against the appellant the judgment must he reversed and a new trial awarded.
Judgment reversed, and new trial awarded.