60 Md. 449 | Md. | 1883
Lead Opinion
delivered the opinion of the Court.
Luther Hauer, the father of the equitable plaintiffs in this case, was killed by a locomotive engine and a train of cars on the road of the defendant, on the 4th of June, 1880; and this action was brought under Article 65 of the Code, to recover for the alleged negligence of the defendant in causing the death.
At the trial there were three bills of exception taken by the defendant; two in respect to rulings upon the admissibility of evidence, and one in respect to the rulings •upon the prayers offered by the respective parties.
1. Tn the first bill of exception the question intended to be raised was as to the admissibility of evidence taken under a commission. The ground of the objection to the admissibility of the evidence, as we gather it from the argument of counsel, was the supposed want of opportunity by the defendant to exhibit cross-interrogatories to the witness examined under the commission. But' it is the settled practice in this State, that, in the execution of foreign commissions to take evidence, no notice to the par
2. The question to the witness, and the answer thereto, excepted to by the defendant in the second bill of exception, would seem to he quite immaterial, and it is not perceived how the answer of the witness could have prejudiced the defendant. The jury were fully and explicitly instructed upon the subject of the measure of damages, and the principles upon which the damages were to be assessed ; and we are not to assume that those instructions were disregarded by the jury. The statement of the witness as to the residence of the children of the deceased, and with whom they were living at the time of the trial, while not material facts to any question to be passed upon by the jury, afford no sufficient ground for the reversal of the judgment.
3. The third bill of exception embraces the rulings of the Court upon the prayers offered by plaintiff and defendant for instructions to the jury, upon the whole evidence in the case.
It is shown in proof that there was a red target signal at this station, which it was the duty of the defendant’s telegraph operator to put down when passenger trains were due there, or were stopping to let off or take on passengers. This signal, according to the proof, was down, and it was an imperative warning to all freight trains, hound either east or west, to stop and not to approach the station while the passenger trains remained there. This signal was entirely unheeded upon the occasion of the accident in question. The freight train, without signal of its approach, came up to and passed the station, while the people were in the act of passing from one platform to the
It also appears from the evidence that while the deceased was in the act of passing from the one platform to the other, and crossing the north track of the main line, there was an outcry and a general warning given to the passengers to get off the track and out of the way of the approaching train. But whether the deceased heard or understood the warning in time to make his escape, or whether he saw the train approaching, and ventured to cross the track in disregard of the danger, are questions left in doubt, and in regard to which there is some conflict among the witnesses as to what did really occur. It is clear, if the deceased had anticipated the passing of the train, and been on the look-out for it, he could have seen it in ample time to have avoided the accident. The evidence on both sides establishes this beyond question. But that there was gross negligence on the part of the employes of the defendant in running the freight train up to and by the station, under the circumstances of the case, is clear beyond doubt, and that fact is not disputed by the defendant. It is, however, insisted for the defendant that the deceased might have avoided the consequences of the negligence in running the freight train by the station, by the use of ordinary care.
In all cases of this kind there are two questions involved. First, whether there be negligence on the part of the defendant which produced the injury complained of? and, secondly, whether the party injured might, by the exercise of ordinary care on his part, under the circumstances of the case, have avoided the accident? In this case, as we have seen, the first of these questions is made clear upon the evidence, and is not open to contro
There can, of course, be no doubt of the general proposition, in a case like the present, that although the agents and employes of the railroad company may be guilty of gross negligence in the manner of operating the road; yet if the passenger, in passing from one train to another, recklessly and without care, fails to pay heed to timely warnings, and attempts to cross a track in front of an approaching train that he does in fact see approaching, or which he knows to be approaching in dangerous proximity, and is killed or injured, such accident is attributable, not to the negligence of the railroad company, but to the reckless negligence of the injured party himself. But while such -is the general principle, in each case the special facts and circumstances must be considered, and their bearing upon the propriety of the conduct of the party injured, except where the facts are clear and undisputed, must be submitted to the jury for their consideration.
The want of ordinary care on the part of the party injured is matter of defence, and the onus of proof of the fact is upon the defendant. And in considering the facts, the question of ordinary care on the part of the party injured is not to be determined in an abstract way, but relatively, as it may be connected with and dependent upon the duty and. obligation of the defendant. It is settled, by all respectable authority, that while the carriers of passengers are not insurers of absolute safety, yet they are bound to exercise reasonable care, according to the nature of their contract; and as their employment involves the safety of the lives and limbs of. their passengers, the law requires the highest degree of care which is consistent with the nature of their undertaking. Warren vs. Fitchburg R. Co., 8 Allen, 227; Balt. & Oh. R. Co. vs. Worthington, 21 Md.,
Here the deceased was a passenger, with a ticket that entitled him to be carried safely from Hagerstown to Frederick. By the regular route and mode of carriage it was necessary for him to change cars at the We ver ton Station, and to cross over the intervening track of the defendant from one train to another. In making this transit he continues to be a passenger of the defendant, and entitled to the protection that the highest degree of care on the part of the defendant could afford, under the circumstances. In leaving the train from Hagerstown, at the station, and in crossing over the intervening track from one platform to the other, in order to take the east bound train, the deceased might well assume that the defendant would not expose him to any danger which, by the exercise of due care, could be avoided. And though the deceased himself was required to exercise reasonable care, yet we may suppose that his watchfulness was naturally lessened by his reliance upon the faithful observance by the employes of the defendant of such precautionary rules and regulations as would secure to passengers a safe transfer from one train to the other. And, except in the presence of immediate apparent danger, he was authorised to act upon such reliance. For the general rule that applies in ordinary cases of parties crossing railroad tracks, that they should stop, look, and listen, before making the venture, does not apply in a case like the present. In such case as this, the rule is, as established by a number of well considered cases, that the passenger of the railroad is justified in assuming that the company has, in the exercise of due care, so regulated its trains that the road will be free from interruption or obstruction when passenger trains stop at a depot or station to receive and deliver passengers. Upon any other principle the lives of passengers might be most dangerously exposed, in the hurry, noise and confusion
Now, applying the principle just stated to the several prayers offered hy the plaintiff and defendant, it follows, as to the first instruction granted at the instance of the plaintiff, that it was rightly granted ; and we do not rmderstand that it is questioned by the defendant. But the second instruction granted for the plaintiff is objected to; and if that instruction stood' alone, and without connection with or dependence upon the preceding instruction, there might he ground for the objection taken to it. It is, however, hy express terms, made dependent upon the finding of all the facts set out in the first instruction, and the conclusion authorised by it could only he arrived at by the finding of all those facts. By the first instruction the jury were required to find “that the killing of the deceased resulted directly from the want of the exercise of ordinary care and prudence on the part of the agents of the defendant, and not from the want of ordinary care and prudence of the deceased, contributing to the accident.” If those facts were found, notwithstanding there may have been a want of ordinary care on the part of the deceased in attempting to cross the railroad track, under the circumstances, the right to recover was not necessarily , precluded. It is not every fault or want of ordinary care on the part of the party injured, in connection with the happening of the accident, that will defeat the right to recover. The books abound with cases to the contrary. This second instruction, with its dependence upon the preceding instruction, is identical with one granted in the case of Trainor, 33 Md., 544, 553, and which this Court held to he correct. Besides, hy the first, second, fourth
The third, fourth, and fifth instructions, granted at the instance of the plaintiff, would appear to be free of error, and there has been no question made on them in this Court. But the defendant earnestly insists that there was error committed in the rejection of its third prayer. In this contention, however, we do not agree.
That prayer was properly refused for two reasons. First, because, by the prayers granted at the instance of the defendant, the jury were fully instructed as to all the conditions of the case upon the finding of which the defendant ■could be exonerated from liability, — all of the prayers conceding the negligence of the defendant; and, secondly, because the prayer, if it had been granted, would have been misleading to the jury. It entirely ignored the fact that the deceased was a passenger, and was entitled to the protection of a passenger in passing over the intervening track to board the train that was to take him on his way to Frederick. It required of the deceased the exercise of care and caution to ascertain whether there was danger of a passing train, before attempting to cross the track to board the train that he was required to take ; whereas he was, unless he saw or know of the approaching train, justified in acting upon the implied assurance that no train ’would be allowed to pass the station to obstruct the trans
There has heen no serious question made upon the rejection of the defendant’s sixth prayer. This we may suppose was for the obvious reason, that' the defendant obtained the full benefit of everything contained in that prayer in the first, fourth, and fifth prayers, upon the same subject. The Court clearly committed no error in refusing to duplicate its instructions, merely because of some slight change of phraseology.
4. The remaining questions relate to the damages, and the principles upon which they are assessed and apportioned. It is insisted by the defendant that the adult children of the deceased are not entitled to any compensation, under the statute, on account of the death of their father. And whether this be so or not depends upon the proper construction of the first and second sections of Article 65 of the Code.
Those sections of the Code are-almost a literal transcript of the English Statute, 9 & 10 Vict. ch. 93, known as Lord Campbell’s Act; the English statute requiring the action to he brought by the executor or administrator of the deceased, for the use of the parties mentioned, while our statute requires the action to be brought by and in the name of the State, for the use of such parties. Under both statutes alike the action is to be for the benefit of the wife, husband, parent, and child of the deceased; and in every such action, the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties for whose benefit suit is brought, and such damages are required to he divided among the parties entitled by the verdict of the jury. The statute makes no reference to the age or condition of the parties, but it simply provides for damages “proportioned to the injury resulting from such death to the parties ” for whom suit may be brought. In the English Courts the construction
In the case of the State, use of Coughlan vs. Balto. & Oh. R. Co., 24 Md., 84, 105, the action was for the benefit óf a widowed mother for the death of her minor son. In that case it was said -by the Court, that “the law on-
In view of the principles of construction just stated, the sixth and seventh prayers of the plaintiff, granted as they were in connection with the seventh and ninth prayers of the defendant, the four instructions being taken together, instructed the jury, as to the measure and principle of estimating the damages, in a manner unobjectionable. By the seventh instruction, granted at the instance of the defendant, the jury were directed to exclude from their consideration all claims for damages by the adult children, unless they should find that such adult children “ were dependent upon their father for support and maintenance, by reason of some want of ability to support and maintain themselves.” This was certainly as restrictive as the defendant could ask; and having obtained such an instruction, the eighth prayer could not have been consistently granted. See Deford vs. State, use of Keyser, 30 Md., 179, 208; P., W. & R. R. Co. vs. State, use of Bitzer, 58 Md., 374, 399.
It is urged that the amount of the damages awarded by the verdict was' largely in excess of any pecuniary injury sustained, and that the apportionment was not warranted
The judgment must be affirmed.
Judgment affirmed.
Dissenting Opinion
dissented on the question of the measure of damages, and were of opinion the defendant’s eighth prayer should have been granted.