| Md. | Mar 1, 1861
delivered the opinion of this court:
The several Acts of Assembly, regulating the liability of railroad companies in this State, for stock killed or injured by their trains, have bien before this court on former occasions, when considerations of public policy and private right were duly weighed and determined. We see no reason for disturbing what was then deliberately settled.
In the case of The Balt. & Ohio R. R. Co. vs. Lamborn, 12 Md. Rep., 257, we adverted to the well settled principle of the common law, that a plaintiff is not entitled to recover for injuries to which his own fault or negligence has direedy contributed, and we said that this rule applies as well to suits against railroad companies as private individuals, and is not abrogated by the Acts of 1838, ch. 244, and 1846, ch. 346. To adopt the construction of these Acts, contended for by the appellant, would entitle a party to recover damages for stock killed by a railroad train, although it should be shown that the accident resulted from the grossest carelessness on his part, or that he voluntarily turned them loose upon the railroad track when a train was passing. We cannot impute such intention to the Legislature, nor can it be found in any reasonable construction of the Acts of Assembly. It is a cardinal rule of interpretation, that “Statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration, other than what is sped
Guided by this rule of interpretation, we can give no other construction to these Acts of Assembly than that which we have heretofore declared. They leave the question of negli* gence, on the part of the plaintiff, where it was at the common law, and do not confer upon a party, who is himself a wrong-doer, the right to obtain redress for the consequences of his own negligence or misconduct. By the common law, in order to maintain ah action like the present, it was incumbent on the plaintiff to prove that the damage complained of resulted from the fault or negligence ft the defendant, or its agents. This has been changed by the Acts of Assembly. They cast the onus of proof on the defendant. When stock is killed by a railroad train, the law imputes negligence to the agents of the company, and in order to exempt itself from liability, it must be shown that the damage complained of was “the result of unavoidable accident.” In construing these words of the Act, we will remark, that we do not understand the Legislature as intending to interfere with the time-tables of the company, or to limit the rate of speed for the trains. While the Act leaves to the company the full exercise of its rights in this respect, it imposes upon them the duty of exercising the highest degree of care and caution. These principles were announced in Lamborn’s case, in which this court said, the question of the fault or negligence of the plaintiff, was a subject proper to be passed upon by the jury.
As some erroneous impressions appear to have grown out of the decision of that case, it may not be amiss to advert to some of its facts, which distinguish it from the case now under consideration. The record disclosed that Lamborn was the owner of land adjoining the railroad, that the horse was standing on the line of the road, near the track, and as the cars approached, he ran upon the track, and was overtaken and killed by the locomotive. No explanation was given of
The facts contained in the bill of exceptions before us, on which the rulings of the circuit court were made, are as follows: “The plaintiff proved that his horses and mule (mentioned in the declaration) were killed by the collision of the cars on the railroad, and the value of the property, and further offered evidence tending to show that they were upon the road without the fault of the plaintiff, or his agents, and also tending to show that they were killed by the defendants, through the negligence of their agents, the conductor and engineer, having charge of the train which caused the loss. The defendants then offered evidence tending to show the use of the greatest care and diligence on the part of its agents.”
Upon this evidence, we think the prayer asked by the plaintiff correctly stated the law, and ought to have been granted; but the judgment would not be reversed on account of its rejection, because the same proposition was embraced in the fourth instruction given to the jury. Wo find no error in the first instruction given by the circuit court. These instructions (the 1st and 4th) submitted to the jury the question of negligence on the part of the plaintiff, as well as on the part of the defendant, which was a proper subject for them to pass upon.
We think there was error in the second instruction, there being no evidence in the cause upon which it could be based. A similar prayer in Lamborn’s case was ruled good, because there was evidence to support it.
The third instruction was also erroneous, because, as interpreted by the appellant, it directed the jury that the defendant was not responsible, if the horses and mule were on the track of the railroad without any fault or negligence of the defendant, or its agents: whereas, in the absence of fault or negligence on the part of the plaintiff, the exemption of the company depends upon its being proved that the collision
It is plain, however, that the phraseology of the third instruction in the record before us, is susceptible of the inter-, pretation put on it by the appellant, and calculated to mislead the jury.
Our attention has been called by the appellee, in his argument, to the fact, that this suit was instituted against the Baltimore and Washington Railroad Company, and that, there is no corporation in this State of the name of the defendant. The real name of the corporation intended to be sued, is the Baltimore and Ohio Railroad Company. The record shows that the service of process was on the agents of this company, that it appeared by counsel, and executed releases to witnesses sworn for the defendant, and that no objection was made in the court below on account of the misnomer of the defendant. Under these circumstances, we are of opinion that the objection cannot be availed of in this court. Although the defendant is precluded from the benefit of this objection on this appeal, yet it is manifest that a judgment recovered against the defendant named in the record, would be of no avail, and could not entitle the plaintiff to enforce payment by execution against the Baltimore & Ohio Railroad Company. This difficulty, however, could be obviated by an amendment, upon a retrial of the cause.
Judgment reversed and procedendo ordered.