61 Md. 108 | Md. | 1883
delivered the opinion of the Court.
This action was instituted for the benefit of the equitable plaintiffs, the widow and children of Arthur McGirr, who was killed on the 27th day of September, 1882, at the intersection of the Pennsylvania Railroad with Valley street, in the City of Cumberland; the declaration averring that the defendant’s locomotive, impelled at an unlawful rate of speed through a populous part of the town, was
The testimony, presented by the record, discloses the fact that the deceased, at the time of the fatal occurrence,, was passing along Valley street from his residence to his place of business, protected from the rain, which was falling, by an umbrella extended over his head and shoulders; and that, at the instant when he was about to cross the track of the railroad, he was crushed and killed by an engine operated by the agents of the defendant. The section of the city surrounding the scene of the collision is compactly built, and the street, along which the deceased was walking, is a frequented thoroughfare. The track of the defendant’s road runs parallel with, and in close proximity to, that of the Cumberland and Pennsylvania Railroad ; and- at the locality, where the tracks of the roads are carried across the line of the street, a flagman, in the employ of the defendant, had his appointed station, and it, was his especial duty to designate by signal the approach of the trains running over the rails of the road. The evidence adduced by the plaintiff tends to prove the absence ■of-this watchman when the collision occurred; while that of the defendant shows that he was near his own house, but at some distance from the crossing. It is apparent that the -usual intimation of danger was not given, and the watchman’s-statement that he called to the deceased is in conflict with the countervailing testimony of a witness,, who says, that at the moment of the fatal catastrophe, she saw him coming from the garden adjacent to his house. This fact, as well as that in relation to the alleged intoxication of the deceased, is involved in obscurity by the doubts created by contradictory testimony.
The first question to be determined is that which is presented by the exception of the defendant to the rejection
In actions of this nature when the questions of fact are numerous, and many of them obscured by contradictory testimony, and thus involved in doubt, Courts have never shown any disposition to ignore the legal maxim, ad questiones facti respondent juratores. On the other hand when there is some prominent fact in the cause, clearly ascertained, and conclusively demonstrating that the injury complained of was directly and proximately produced by the negligence of the injured party, it is the duty of the Court to instruct the jury that there can be no recovery in the action.
In 39 Md., 449, it is said that “cases may'and sometimes do occur, in which the uncontradicted evidence proves such a glaring act of carelessness on the part of the plaintiff as to amount in law to contributory negligence, and in such it is the duty of the Court, when requested, to decide the question without the intervention of the jury. But in no case ought the Court to take the question of negligence from the-jury unless the conduct of the plaintiff, relied on as amounting in law to contributory negligence, is established by clear and uncontradicted evidence.” McMahon vs. North. Cent. Railway Co., 39 Md., 449.
In 29 Md., 438, it is said that “ Negligence is a relative term, and in cases of the character now before us, it is very much dependent upon the particular facts and circumstances of each case that occurs. What may be gross negligence in one case, may not be so in the light of the particular facts of another; and ordinary care in one state of case may be very gross negligence in another and a different case.”
“[Negligence is the absence of care according to the circumstances, and is always a question for the jury where there is reasonable doubt as to the facts, or as to the inferences to be drawn from them.” P. & R. Co. vs. Killip, 88 Penn. St., 412.
The determination of the question, presented in the cases just cited, necessitated the application of a principle which cannot be successfully controverted. As it is an ethical proposition, which carries with it an axiomatic force and cogency, that there can be no recognition of an abstract right or wrong, it is apparently impossible to predicate negligence of any particular act, until the relation, in which it stands to its surroundings, has been clearly ascertained, and is fully comprehended. When a question of this nature is presented for solution in a judicial investigation the attendant facts and circumstances are to be sought for and discovered. If the circumstances, accompanying and characterizing the act, are removed from controversy by concession, or by the absence of contradiction, the calm scrutiny and acumen of a learned Bench can readily reach the proper conclusions without the intervention and aid of a jury. But if the evidence in the cause is antagonistic and contradictory, and the facts and circumstances are obscured by a cloud of doubt, or even if the facts are ascertained, but sound and rational minds might deduce diverse conclusions from them, the case is clearly not one for the determination of the Court. A trial of facts has become necessary, and the organic principles of our system of jurisprudence have devolved this important duty upon the jury, enlightened by the instructions of the Court in relation to the legal principles applicable to the particular facts elicited, while analyzing the mass of evidence presented for their consideration, and dealing with the question of credibility.
“ The act of making a running switch, to cut out of a long train a car to be left, and to bring the remaining portion of the train together while running at a rapid rate, evidently requires a good degree of care and skill; and if it is done over any public crossing, it must expose passers-by to more than ordinary danger. I am at a loss to see how the defendant could justify the selection of such a place for the performance of what, under the circumstances, appears to me to be so dangerous an act; and more particularly to see any ground oh which a Court could adjudge, as matter of law, that it was safe and proper, in such a locality, to make a running switch, whereby one train is detached into three parts, the two last propelled by their own momentum at a rapid rate, over a much frequented thoroughfare, without signal or warning of any kind. In my judgment it was gross negligence, for which I should hesitate to say the company could not be held to a criminal responsibility.”
In opposition to the instructions invoked by the defendant, it was further urged that it was in evidence that the train was running at the rate of twenty miles an hour, which fact would be, to the minds of intelligent jurors, suggestive of the hypothesis that had it been moving at the maximum speed, designated as lawful by the ordinance of the city, the ordinary gait of the deceased in walking might have carried him over the crossing and beyond the imminence of danger. And when he heard the whistle sounded, it might be asked, had he not reason to assume that the engineer was acting in conformity with legal obligations, and that, by walking at one-half the speed prescribed by the ordinance for the running of the
“Although it is not negligent for a railroad company to omit to keep a flagman, yet if one is employed at a particular crossing, his neglect to perform the usual and ordinary functions of the place may be sufficient to charge the company.”
It has been deemed proper to thus notice the able argument of the plaintiff’s counsel in order that the ground which forms the basis of this opinion may be fully dis-. closed. No justification of the reckless conduct of the defendant is intended. On the contrary, that conduct must be characterized as exhibiting the grossest negligence* which, under other circumstances, might have devolved on the company a fearful responsibility. If at the moment when the engineer, by uncoupling the cars, had rendered it impossible to stop the train as he approached the crossing, a procession of people, as often occurs in towns and cities, had been moving along that frequented thoroughfare, those in front being impelled onward by the momentum imparted by the multitude in the rear, and thus, deprived of the volition necessary to control their movements, carried on the crossing, a frightful calamity, resulting in the destruction of many lives, might have been the direct and proximate consequence of the recklessness of the defendant’s agents. This is unlike the case of a person attempting to cross the track of a railroad at a point where no public crossing has been established, and where the individual, having no right to cross, takes upon himself the hazard of the attempt. In such cases, as has
It has, however, been settled by numerous adjudications that, notwithstanding the most culpable negligence on the part of the defendant, if the evidence clearly demonstrates that the infliction of the injury complained of would have been impossible had the injured party observed due care and caution, the plaintiff is not entitled to recover in the action. In the case now under consideration the evidence shows that the deceased was approaching the point of intersection, where the track of the road is laid over the line of the street, and where he knew that he might incur the risk of encountering a passing train. It was his duty to look and to listen. Even if intervening objects obscured the scope of his vision, he could have heard the sound of the whistle, the ringing of the bell, and the rumbling noise made by the movement of a ponderous locomotive. The proof shows that, pursuing a course perpendicular to the line of the track, he walked directly against the engine, and was frightfully mutilated, and instantly killed. Unless a man were intent on self-murder it is difficult to account for an act exhibiting such an utter disregard of ordinary care and caution, and such extreme recklessness.
In view of the uncontradicted facts disclosed by the record, which clearly prove contributory negligence on the part of the deceased to have been the direct and proximate cause of his death, the Circuit Court erred in rejecting the first, second, and third prayers of the defendant
Judgment reversed.