delivered tlie opinion of the Court.
At the trial of this caso, in the Circuit Court for Carroll County, exceptions were taken by the appellant, to the granting of the three prayers of the appellee, as well as to the rejection of all its prayers, except the seventh, thirteenth, fourteenth and seventeenth, as also to the instruction given by the Court in lieu of the third, fourth, tenth, and eleventh. A motion in arrest of judgment was also filed, which was overruled, and we will dispose of that before considering the prayers.
The motion is based on twelve reasons, which are especially assigned in the motion filed.
The first and second reasons assigned are, that the appellee did not comply with the third section of Article 65 of the Code, under which the suit is brought, by delivering, with the declaration, to the defendant, or its attorney, a full particular of the persons for whom and in whose behalf the action was brought, and the nature of the claim in respect of which damages were sought to be recovered. The object of this section of the Code was to have the defendant furnished with information, which would enable it to plead to the declaration and make its defence to the suit. In the case of The Baltimore and Ohio Railroad Company vs. The State, use of Woodward, 41 M.d., 297, this Court has said that the particular, when furnished, is intended for the same purpose and has the same effect as a bill of particulars in other cases, and restricts the plaintiff’s proof and limits his recovery to the claim therein stated. The particular is to be given to the defendant for his own benefit, and, as the defendant in this case did not demand it, but filed its pleas without it, it may be considered as having waived its right to have it. But we do not think that this section is mandatory. The
The requirement to deliver a “particular,” as provided by sec. 3 of the Code, is merely directory, and in nowise affects the right of the plaintiff to maintain the suit. It is no part of the record; is not even required to be filed, but merely delivered to the defendant or its attorney. Motions in arrest are for matters apparent on the face of the record, and for this reason, as well as for those before stated, the first and second causes assigned, furnish no ground for sustaining the motion. The declaration alleges that Sarah Bitzer is the widow, and the other
It was not necessary to allege that the defendant’s negligence was such that, if death had not ensued, Samuel Bitzer himself would have been entitled to recover for the injury done him. There was nothing therefore in any of the other reasons assigned, which furnished any ground for sustaining the motion in arrest, and it was therefore properly overruled.
The three prayers granted at the instance of the appellee, state the law with respect to negligence and the measure of damages, as it has often been heretofore announced by this Court, in cases arising under the 65th Article of the Code, and no valid objection can be urged against them, and there is evidence in the record to support them, and which was properly submitted to the jury, and they were rightly granted. There was no evidence of any such gross or glaring neglect on the part of Samuel Bitzer, as would justify the Court in saying that it amounted in law to contributory negligence. The evidence of negligence
The appellant’s second prayer seeks an instruction that the appellee was not entitled to recover for the various reasons especially assigned therefor. All these reasons* except the fourth, have been disposed of in what we have said with respect to the reasons assigned in the motion in' arrest and the appellant’s first prayer. The fourth will he disposed of in connection with the appellant’s eighth* ninth, twelfth, fifteenth and sixteenth prayers. They are all based on the theory, that if the appellant’s track was out of repair and imperfect through its own neglect, and that in consequence of such imperfect condition of its track, Samuel Bitzer lost his life, that still the appellee was not entitled to recover, because the said Bitzer was a coemployé of the appellant’s employes. This theory is based upon the agreement, set out in the record, between the New Jersey Railroad and Transportation Company, the Camden and Amboy Railroad and Transportation Company, the Philadelphia and Trenton Railroad Company, parties of the first part, the Philadelphia, Wilmington and Baltimore Railroad Company, the appellant, of the second part, and the Baltimore and Ohio Railroad Company of the third part. • This agreement was entered into for the purpose of securing comfort, speed and safety in the through passenger travel between New York and Washington, and to secure harmony of action between said parties to accomplish that object. Whatever effect this agreement might have upon the parties to it, it could not have any upon strangers to it, nor alter nor change the relations of either _ of them towards third parties, nor have the effect of making those, who were employed and paid wages by either of the contracting parties, the co
The fifth prayer was rightly refused for the same reason we have assigned for affirming the Court’s ruling upon the first prayer, and that is, that there was evidence from which the jury were at liberty to find that the death of Samuel Bitzer was caused by the negligence of the appellant’s agents.
The jury had been instructed by the appellee’s first prayer that they must find negligence on the part of the appellant, or its agents, in order to find a verdict for the appellee, and therefore the appellant had, under that instruction, obtained all that was asked by its sixth prayer, and there was therefore no error in rejecting it.
The third, fourth, tenth and eleventh prayers, we think, were well calculated to mislead the jury. They
Finding no error in the rulings of the Circuit Court, the judgment appealed from will be affirmed.
Judgment affirmed.