72 Md. 36 | Md. | 1890
delivered the opinion of the Court.
This suit was brought in the name of the State, for the use of Lucy A. Wiley and others, to recover damages for the death of William H. Wiley, husband and father of the equitable plaintiffs, occasioned by collision of appellant’s trains, going in opposite directions. The negligence of the appellant’s officers is conceded, and appellant relies wholly on what it claims to have been contributory negligence on the part of the deceased, as its defence to the action.
The deceased was chief postal clerk in the United States railway mail service. He held what is known as a “photograph commission” from the government. His route was - from Baltimore to Grafton. He was entitled under his commission to ride as a passenger on the appellant’s trains, by virtue of his commission, while in the active discharge of duty, or in going from and returning home. At the time of the accident he was not in active duty, but was returning to his home until he should be called to duty again, in a few days. He
In effect this prayer asked the Court to say, as matter of law, that notwithstanding the postal car was the place where the plaintiff ordinarily remained and was required to remain as a passenger, when in the discharge of his postal duties, still, if he was not in the discharge of his official duty, it was fatally contributory negligence for him to be in that car, although the conductor was in the habit of allowing him to be in that car when returning
It may be that the location of the postal car was, by reason of its greater proximity to the engine, a place of greater danger than the smoking car or other passenger cars. Still it was a car for the occupancy of passengers who were entitled to ride as such because of their official position or connection with the post office department of the government, or who paid their fare and was connected with that department. There was no rule of the company forbidding the deceased to enter that’ car and occupy the same, if he was not in actual service. It was his habit to occupy it when he was returning from duty whenever he chose, and the conductor, who is conceded to be a general agent of the company, not only made no objection, but permitted him from time to time to do so. There are cases, no doubt, where the invitation or permission of the conductor would not protect a man in running a risk which was. so obviously dangerous that a prudent man would not think of incurring it. Patterson’s Railway Accident Law, sec. 276, and cases cited. To justify a Court in saying that conduct is per se contributory negligence, the case must present some such feature of recklessness as would leave no opportunity' for difference of opinion as to its imprudence in the minds of ordiparily prudent men. Baltimore & Ohio Railroad Co. vs. Kane, 69 Md., 21; Cumberland Valley Railroad Co. vs. Maugans, 61 Md. 61; Balto. & Ohio Railroad vs. Fitzpatrick, 35 Md., 46; Balto. & Poto. R. R. Co. vs. State, use of Stansbury, 54 Md., 655. Here the, deceased was doing what he was actually required to do for the larger part of his time on the cars, and was permitted to do the rest of his time when on the cars. It was provided for his occupancy when on duty as postal clerk,
Judgment affirmed.