29 Md. 252 | Md. | 1868
Lead Opinion
delivered the opinion of the court.
However the law may be, elsewhere, in regard to the duties of rail road companies in cases, like the present, where damages are claimed for alleged neglect and wrongful conduct, it is settled, in this State, by the decisions of this court in B. & O. R. R. Co. v. Worthington, 21 Md. 275; State v. B. & O. R. R. Co. 24 Md. 84; Bannon v. B. & O. R. R. Co. 24 Md. 108; and B. & O. R. R. Co. v. Breinig, 25 Md. 378. There is no feature, in this case, connected with the proposition involved in the first exception, to distinguish it from them, and particularly Breinig’s Case, where the instruction of the court was entirely similar.
The doctrine announced is plainly this: that whilst a rail road company, in the lawful pursuit of. its business, employing use
The relative rights between it and strangers are different in degree from those between it and passengers, whose claim have a superadded obligation arising from contract and confidence; and the utmost vigilance and care are to be observed in regard to them. The demand of strangers makes it incumbent on it, upon general principles of humanity, to exercise such reasonable vigilance and care towards them as not to be the occasion of doing them an injury by its negligence, which could be avoided by judicious foresight.
It is protected by the principle common to it, with others, that if a party receives injury from it by its negligence and want of care, and it can be shown that such party has, by his own want of care, been the occasion of the injury, or by his-negligence, directly contributed to the accident, he can sustain no claim for the damage inflicted upon him, and it is excused. If disaster occur under such circumstances, it is the party’s own misfortune. The rail road company, in the due discharge of its duty to the public, in running its engines and cars, in the thronged streets of a populous city, where old and young, the active and decrepit, have a right to be passing, is required to use a higher degree of caution than would be necessary, when moving in the open country, where there is not the same imminency of collision with others; whilst it is necessary, with regard to the character of its business, that the cars and engines of a rail road company should move with more speed than ordinary conveyances, every reasonable precaution must be used compatible with the exigencies of its business and commensurate with the risk and hazard that necessarily arise. The rail road company, although using a machinery capable of great and dangerous results, if negligently employed, yet being a great public con
The defendant, in the lawful pursuit of its business, was only obliged to use such reasonable care and diligence as ordinary prudence would suggest and require, having regard to the business in which it was engaged, and its liability to dangerous collision with others, in the passage of its locomotives through the thoroughfare of a city.
We perceive no error in the latter clause of the instruction denying the right of the plaintiff to recover, if the deceased had not used ordinary care to avoid the. accident. The first position is objectionable for the reasons stated; and, therefore, the instruction is overruled. Nothing was said in the instruction as to the question whether the company at the time of the accident was in the lawful pursuit of its business. _ If the defendant were not conforming to the Ordinances of the city, providing certain safeguards and precautionary measures, then the language of the instruction requiring the “ utmost vigilance,” might have been given, which was less than such an occasion required. The court might have gone further and instructed the jury that the company was responsible at all hazards for any accident occasioned by it, unless the other party was also in fault. If the company had failed in regard to such requirements, it was then not in the lawful pursuit of its business, and not entitled to the consideration of the law, whose injunctions it had disregarded: under such circumstances, the highest possible vigilance could not have afforded it protection from the consequences of its lawless acts. The second bill of exceptions in this case, not expressly referring to the first, objection was made by the counsel for the appellee, *that there was no evidence therein upon which the defendant’s prayers could be founded. But as
The fourth and'fifth prayers of the defendant were granted; but the court having refused its first, second, third and sixth prayers, it excepted. We think they were all properly rejected. The first and sixth may be considered together, as they involve the same proposition — asking the court to declare to the jury that certain conduct on the part of the deceased, if believed by them, would constitute negligence, and bar a recovery.
There is no doubt of the law, as stated in the latter part of the plaintiff’s prayer in the first bill of exceptions, upon which we have expressed our views, to wit: That the right to recover is dependent upon the deceased having made use of ordinary care to avoid the accident, and that, if he were a contributor to his own misfortune by his negligence, no recovery could be had, although the defendant, by the use of greater diligence, might have prevented the accident. As to the principle involved in the first and sixth prayers of the defendant, requiring the court to define for the jury the facts constituting negligence on the part of the deceased, if the jury believed them, we do not think, under the facts and circumstances of this case, it was error on the part of the court to reject these prayers, and to submit to the jury the question of negligence on the part of the deceased, the court having prescribed or recognized the rule or standard of care and diligence required by the law, as expressed in the latter clause of the plaintiff’s prayer in the defendant’s first exception, and in the defendant’s fourth prayer in the second exception, which was granted. B. & O. R. R. Co. v. Worthington, 21 Md. 275.
*The second and third prayers of the defendant may be considered together, for like reasons as were the first and sixth.
Whilst the first and sixth prayers asked the court to characterize certain facts as constituting negligence on the part of the deceased to bar a recovery, the second and third prayers invoked the court to specify for the jury what facts constituted
Judgment reversed and procedendo awarded.
Dissenting Opinion
dissented as to the ruling of this court in reference to the first and sixth prayers of the defendant, being of opinion, that they should have been granted by the court below.
