State ex rel. Coughlan v. Baltimore & Ohio Rail Road

| Md. | Feb 28, 1866

Bowie, C. J.,

delivered the opinion of this Court.

These are cross appeals, in an action instituted under the 1st and 2nd Sections of Article 65, of the Code, by the State, for the use of a widowed mother, whoso son was killed, under the circumstances detailed in the bill of exceptions.

After evidence offered by both parties, a series of prayers was submitted by each, all of which were rejected and others given, by the Court instead thereof, to-which rejection, and the instructions given, the plaintiff and defendants severally excepted.

The counsel of the defendants, having filed in these causes a declaration in writing, that in the event of an affirmance of the judgment as against the plaintiff on its appeal, in the first case, the defendants will abandon .their excejffions, it is proper first to inquire whether the appellant has been aggrieved by the action of the Court below.

The General Assembly of this State, in the year 1852, finding the common law maxim, “Personal actions die with the person,” unsuited to the circumstances and condition of the people, enacted a law entitled “ An Act to compensate the families of persons hilled by the wrongful act, neglect, or default of another person.” To máte its design more obvious, the fourth section provides “ the word persson shall apply to bodies politic and corporate,” and “ all -corporations shall be responsible under this act, for the wrongful acts, neglect or default of all agents employed by •them.”

The material provisions of this Act, as well as its title, are derived from the 9th and 10th Victoria, and are embodied in Art. 65, (title Negligence) of the Code.

The object of the several series of prayers was, 1st, to furnish the jury with a standard of care and diligence, required by law, of the defendants, to exempt 'them from liability for damages, for the injury incurred ; 2nd, to prescribe the care necessary to be exercised by the deceased, to entitle his next of kin to recover; 3rd, to define the measure of damages.

The appellant’s first prayer required the defendants, under the circumstances therein predicated, “to* exercise the utmost care and diligence to prevent accidents endangering the life or lives of the people or inhabitants of the said city.”

The second held that the defendants were hound to use all the means and measures of precaution that the highest prudence would suggest, and which it was in their power to employ, and if the use of a guard or lookout at the he ad or in the rear of said cars * * was a measure by which such, accidents would probably be avoided, the omission was culpable negligence.

The appellant’s third prayer affirms, that the jury in the estimate of damages should take into consideration, the expense to which the plaintiff was subjected in consequence of the accident, and the loss resulting therefrom not only to the present time, hut also the probable prospective loss and expense, etc., and that in estimating the said loss and damage, the jury are not limited to the actual pecuniary loss proved in said case.

The propositions laid clown by the Court, in the first instruction granted, are,

That the defendants in the movement and management of their cars and engines were bound to exercise the utmost care and diligence which it was within their means and-power to employ to prevent accidents and injuring or endangering the life or lives of the people. And if the jury find that the child of the plaintiff’s cestui que use, was run over and killed by the defendants’ cars as described by the witnesses ; “and that if the defendant’s in the use and management of their cars and engines, had exercised the-highest degree of care and diligence, ‘ which it was wthin their means and power to employ,’ the said accident could have been prevented, then the plaintiff is entitled to recover in this action : but although the jury may find that the-said accident could have been prevented by the use of such care and diligence, on the part of the defendants, yet the plaintiff is not entitled to recover if the jury believe the accident could have been avoided by the exercise of that degree of care by the said child which was under all the circumstances to be naturally and reasonably expected from one of said boy’s age and intelligence.”

The degree of care and diligence, imposed by law on the defendants, in the instruction given by the Court, is as high as that required by the appellant’s prayers ; the degree is, the “utmost care and diligence,” the “highest it was within their means and power to employ the only material difference is, that one of the appellant’s prayers asked the Court to instruct the jury specifically “ that if the use of a guard or lookout, at the head or in the rear of said cars, was a measure by which such accidents would probably be avoided, the omission was culpable negligence.” The general terms, used by the Court, embraced all the particulars specified by the prayer of the appellant, qualified by the words, “it was within their means and power to employ.” The jury were at liberty to find under the instruction given, and perhaps did find that the absence of the guard constituted the want of “the highest care and diligence within the means and power of the defendants,” and therefore rendered their verdict in favor of the T-daintiff.

The liability of the defendants in this case, did not depend upon their obligations as carriers of passengers, in Avhich character they are bound to use ‘ ‘ the utmost care and diligence which human foresight can use.” Stockton vs. Frey, 4 G., 422, 423. Worthington vs. Balto. & Ohio R. R., 21 Md. Rep., 275. But their liability, if any, arises upon a statute which limits 'the action to such wrongful act, neglect or default, “ as would (if death had not ensued) have entitled the party injured to maintain an action and receive damages in respect thereof.” Vide Code, Art. 65, Sec. 1.

The party injured not being a passenger, the defendants were not required to exercise that degree of vigilance, which the law requires towards those to whom there is a relation of trust and confidence or bailment between the parties. ‘‘ Towards the one the liability of the latter springs from a contract express or implied, and upheld by an adequate consideration. Towards the other, he is under no obligation but that of justice and humanity. While engaged in their lawful business, both are bound to use a degree of caution suited to the exigencies of the case.” 8 Barbour, 378.

In an analagous case, this Court said, rail road companies should use “such care and diligence in using the locomotive upon the road, as would be exercised by skillful, prudent and discreet persons having the control and management of the engine, regarding their duty to the company, the demands of the public and the interests of those having property, and having a proper desire to avoid injuring property along the road.” This was said in a case of injury to property, but is cited with approbation by Red-field as applicable to persons. Redfield on Railways, 395. 4 Md. Rep., 251.

The Court’s instruction did not close with the definition of the degree of care and diligence on the part of defendants, but proceeded to inform the jury that although the accident could have been prevented by the exercise of such care and •diligence by the defendants, yet the plaintiff is not entitled to recover, if the jury believe the accident could have been •avoided by the exercise of such care by the child as might under all the circumstances have been reasonably expected from one of his age and intelligence. In other words, if there was neglect or default on the part of the boy, or the absence of that prudence which boys of like age and capacity usually exhibit, the defendants were not liable, although by the exercise of extraordinary care on their part the accident might have been prevented.

This ruling is in conformity with all the text writers, and the great majority of adjudged cases. Redfield on Railways, 337. 2 C. & P., 730. 8 C. B., 115.

It is objected on the part of the plaintiff below, the appellant in this case, that the Court’s first instruction was erroneous, in instructing the jury the action could not be maintained, " if the jury believe the accident could have been avoided by the exercise of that degree of care by the said child' which was, under all the circumstances to be naturally and reasonably expected from one of his age and intelligence whereas the Court should have told the jury, the plaintiff could not recover, if the jury found " there was a want of that degree of care on the part of the said child which under the circumstances, was naturally and reasonably to be expected in one of his age and intelligence.” The question of the "want of,” or "absenceof ” such care, should have been left to the jury rather than the exercise of such care. It is difficult, if not impossible, to perceive the difference between the two propositions. In the Court’s instructions, the proposition is stated affirmatively ; in the appellant’s objection, it is negatively. The jury was to find whether there was or was not due care on the part of the deceased. They are told by the Court, if they believe the accident could have been avoided by " the exercise of that degree of care,” etc., the plaintiff cannot recover. The appellant insists that it is not the exercise, but the want of care, (which is the non exercise of care,) that is the criterion. The principle of the common law, that a plaintiff cannot recover for injuries ‘ ‘ to whichhisownnegligence directly contributed,” is admitted, and it seems to us, it was clearly expressed by the Court in the instruction given, as far as the conduct of the deceased child -was concerned.

In the case of the B. & O. R. R. Co. vs. Lamborn, 12 Md. Rep., 261, and Keech’s case, 17 Md. Rep., 46, the rule of the common law that the plaintiff could notrecover forinjuriesto which his own negligence directly contributed, was held to apply to actions brought on the statutes therein referred to, and the instructions affirmed bytlie Court in these cases submitted to the jury, the question of negligence on the part of the plaintiff, as well as on the part of the defendants.

The same policy would require the plaintiff to show in actions for injuries resulting in death, that neither the party injured nor the parties for whose use the action was brought, had contributed by neglect or want of care to the calamity complained of. This omission in the instruction given enured to the advantage of the appellant and cannot be taken advantage of on her appeal.

The objection raised by the plaintiff to the Court’s second instruction, involves the measure of damages. In the language of the briefs, “ it was erroneous, 1st. Because it ignores the mental sufferings of the mother suing for damages sustained by the loss of the child, and confines her claim to damages. 2nd. Because it limits the pecuniary loss of the mother, the ‘cestui que use’ to the minority of the child, and deprives the jury of the right to award her damages for the pecuniary loss she would reasonably sustain in her advanced life for want of the labor and services of tbe son, even after he reached his majority. The rule should have been to allow what they considered a reasonable compensation.”

In the absence of any interpretation of this act by our own Courts, we must compare and weigh the reasoning of the authorities cited, in which similar acts have been construed by other tribunals. First in order are the decisions in England upon the Act called Ld. Denman’s Act, 1 Redfield, 336. The observations of Coleridge, J., in the case of Blake, administrator, vs. the Midland Railway, 10 Eng. L. & E. Rep., 467, cited by Redfield in his notes, are very strong in support of the instructions given by the Court below in this case, confining the jury to the pecuniary damage sustained by the plaintiff. He says, “ our only safe course is to look at the language the legislature has employed. * * The title of the Act is for compensating families of persons, etc., not for solacing their wounded feelings.” * * By the terms of the Act quoting the second section, “the measure of damages is not the loss or suffering of the deceased, but the injury resulting from his death, to his family.” This language seems more appropriate to a loss of which some estimate may be made, than an “ indefinite sum, independent of all pecuniary estimates, to soothe the feelings, and the .decision of the amount strongly tends to the same conclusion.” As we have before intimated, the title and language of the Act of Assembly of this State are almost literally the same with those of English statutes. The former contains also the provision for distributing the damages among the surviving members of deceased’s family, on which the learned Judge relies, for adopting the principle of compensation for damages which may be estimated in money.

The American cases, arising upon Acts varying in language, necessarily lead, as observed by Judge Redeield, to a diversity of decisions. We have no better guide than the construction of a statute originating in the same policy, and expressed in the same words, by enlightened jurists, distinguished for their independence and jealous regard for the rights of suitors.

It is assumed by the learned author just mentioned, as the conclusion of the best considered cases in this country, “ that mental anguish which is the natural result of the injury, may be-taken into the estimate of the damages to the party injured, although not of itself the foundation of the action.” The connection, in which this assumption is made, might lead to the inference', that it applied to actions brought by survivors, for injuries done to their deceased ancestor, relative or next of kin; but upon reference to the authorities cited, it will be found, ‘‘ that the plaintiffs in those cases were the persons sustaining the bodily harm, and in estimating their damages," their mental suffering constituted an element ,of compensation.” 1 Cush. Rep., 451, and 10 Barb., 623.

To have instructed the jury to allow ‘‘ what they considered a reasonable compensation,” would, in the language of the Supreme Court of Pennsylvania, “ be giving the jury discretionary power without stint or limit, highly •dangerous to the rights of the defendant, and leaving them without any rule whatever.” Rose vs. Story, 1 Barr Rep., 190, 197.

In the case of The Penn. Rail Road vs. Kelly, 7 Casey, 372, the same learned Court say : ‘‘ Generally speaking (they add,) the influence of the Court in this class of cases, should he exerted to restrain those excesses into which juries are apt to run. * * * Wild verdicts are frequently rendered. And the tendency in modern times undoubtedly is to excessive damages, especially where they are to he assessed against corporations.” Ibid, 379. 33 Penn. Rep., 330. The Penn. R. R. Co. vs. Zebe et ux. The last objection to the second instruction granted is, that it limits the mother to compensation for the loss of her son during his minority only.

To submit to a jury the value of a life without limit as to years, would have been to leave them to speculate upon its duration, without any basis of calculation. The law entitles the mother to the services of her child during his minority only ; (the father being dead,) beyond this, the chances of survivorship, his ability or willingness to support her, are matters of conjecture too vague to enter into an estimate of damages merely compensatory.

According to the appellant’s theory, the mother and son are supposed to live on together to an indefinite age ; the one craving sympathy and support, the other rendering reverence, obedience and protection. Such pictures of filial piety are inestimable moral examjfies, beautiful to contemplate, but the law has no standard by which to measure their loss.

(Decided February 28, 1866.)

This Court being of opinion that the several instructions granted by the Court below, were as favorable to the plaintiff (the appellant) as she was entitled to, and that she was not prejudiced by the rejection of the prayers submitted on her part, finds no error in the rulings of the Court helow, in the first appeal, and will affirm the judgment.

Judgment affirmed.