58 Md. 482 | Md. | 1882
delivered the opinion of the Court.
This suit was brought to recover damages for the death of George Bacon, a colored man, who was struck and killed by an engine on the road of the defendant, about 10 o’clock at night of the 6th of September, 1819; the accident being alleged to have occurred by the negligence of the employés of the defendant.
At the trial in the Court below, after all the testimony was in, both for plaintiff and defendant, prayers for instruction were offered by the plaintiff, but which were rejected; and the Court, at the instance of the defendant, instructed the jury, “that the plaintiff was not.entitled to recover, because the deceased directly contributed to cause his death;” and a verdict was rendered for the defendant accordingly. And the first and principal question is, whether this instruction was rightly given. .
In actions like the present, to recover damages for personal injuries suffered by the alleged negligence of the defendant, it is incumbent upon the plaintiff to prove, 1st, that there was a neglect of duty by the defendant; and, 2ndly, that the injury sustained was the direct consequence of such neglect of duty. And in many cases, as in the present, a third question arises, and that is, whether the party killed or injured was so far to blame, as to have directly contributed, by his own negligence or want of caution, to produce the injury complained of. This being matter of defence, the onus of proof in respect to it is properly on the defendant. But it is not unfrequently the case, that material defensive facts are disclosed by the
In this case the facts are few, and from their nature it requires no long process of deduction to enable us to arrive at a definite and certain conclusion from them. The proof on the part of the plaintiff shows clearly that Bacon, the deceased, had lived for several years immediately on the roadside, and was well acquainted with the running of the trains. That he, with his companion Williams, on the evening of the accident, sometime between 6 and 7 o’clock, left his house and went down the railroad to a store, immediately on the road side, a distance of something over a mile and a half from his house. He remained at this store until about 10 o’clock, when he, Avith his companion, started to return to his house, Avalking up the track of the railroad. The train which caused the death of Bacon was a regular express train from Baltimore to Washington; and the schedule time for leaving Baltimore was 9 o’clock at night, or 9.05 by Philadelphia time, though it was a little late that night in leaving Baltimore; and, according to the testimony on the part of the plaintiff, it was a few minutes late when it reached Seabrook station, near which the accident occured; though, according to the testimony on the part of the defendant, the time had been fully made up before the train reached that station. While at the store neither Bacon nor Williams kept any lookout for the passage of the train, though they knew that such train was to pass, and of the time it was due at Seabrook station.' Just before leaving the store for
Now, as stated hy the witnesses, the night was dark, and the parties assumed the risk of walking up the railroad track for a distance of over a mile and a half,- knowing that it was about the time for the passage of an express train, and without knowing whether or not such train had in fact passed. It is true, thejr may have supposed that because a few minutes had elapsed after the precise time when the train was due, 'according to the time kept hy themselves, that it had in fact passed. But that was a mere surmise, founded upon no other fact than the few minutes time that was supposed to have elapsed from the time when the train was regularly due. They had heard no train pass that they took to be the express train, though they had been for about three hours at the store immediately on the road side; and it is the common knowledge of every one at all acquainted with the running of railroad trains, that it is no unusual thing for them to he a few minutes behind schedule time in passing way-stations. It was an act of peril, and therefore an act of negligence, under the circumstances of the case, to undertake to walk such a distance on the railroad track. And
Repeating here substantially what has. been said and held in previous cases, the deceased was at the time of the accident on the private right of way of the defendant, where he had no right to be. But, aside from this fact, the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking proper precautions for his own safety. Negligence of the defendant's employes in these particulars, was no excuse for negligence on his part. He was bound to listen and to look while walking along . the railroad track, in order to avoid an approaching train, and not to walk' carelessly into a place of possible danger. Had he used his senses, he could not have failed both to hear and to see the train which was approaching; and having failed to observe the proper precautions, there is no right of action against the defendant for the. consequences of the accident. N. C. R. Co. vs. Burns, 54 Md., 113; B. & P. R. Co. vs. Stansbury, Id., 648; Railroad Co. vs. Houston, 95 U. S., 702.
There was some objection made to the form of the instruction given; but while the form of the instruction would have been more appropriate, if it had directed the jury that upon the case made by the plaintiff, or uj)on the undisputed facts in the case, there was no ground of action shown, and therefore their verdict must be for the defendant; yet when this Court can plainly see that there is no ground for the action, or no possible right ■of recovery, it will not reverse the judgment upon the mere.form of the instruction that has led to a right result. The judgment must be affirmed.
Judgment affirmed.