Philadelphia, Wilmington & Baltimore Railroad v. Stebbing , 62 Md. 504 ( 1884 )

Alvey, J.,

delivered the opinion of the Court.

We think the Court below was quite right in refusing to withdraw this case from the jury, on the prayers of the defendant. While the testimony as to the material facts of the case, was very conflicting, that given on the part of the plaintiff entitled him to have the weight and credibility of the whole evidence passed upon by the jury. For though it he true, if we assume the truth of all the evidence on the part of the defendant, there would he no ground for recovery by the plaintiff, yet the evidence on the part of the plaintiff, if believed by the jury, might well afford ground for the conclusion that there was such negligence on the part of the defendent as to entitle the plaintiff to recover. Whether the employés of the defendant in charge of the train ran the train at a greater rate of speed than that allowed by the ordinance of the town of Port Deposit, or whether they rang the hell to give warning of the approach of the train, are facts in regard to which the testimony is in direct conflict. They did not sound the whistle; and they were running the engine and tender backwards, in which position the air-brakes were powerless over the train. Both engineer and fireman prove that they saw the plaintiff and his fellow-laborer at work in near proximity to the railroad tracks, at considerable distance before reaching the spot; and that being so, it was their duty to avoid running upon them without giving signal or warning of approach. But both the engineer and fireman say that the train was slowed xip, and was not running at the time of the accident, at a rate of speed exceeding from four to six miles an hour, and that the hell was continuously rung after leaving what is known as the Bank station, until the train reached the point of the accident. If this he so, clearly, there could he no fault or negligence imputed to the defendant ; but the direct and proximate cause of the accident would he imputable to the negligence of the plaintiff, in putting himself in a place of possible danger, and in not looking out for the approach of the train. We do not, however, intend to intimate any opinion as to the proper conclusion to he drawn from the conflicting evidence, hut leave that to he done by the jury, to whom the consideration of the facts belong.

In all these cases where negligence is the ground of the action, and the plaintiff was not a passenger of the defendant at the time of the injury received, the onus of proof is upon the plaintiff to trace the cause of his injury directly to the fault or neglect of the defendant, and to do this he must show the circumstances under which the injury was received. And if from the circumstances thus shown it appears that the fault was mutual and concurrent, and the plaintiff is justly liable to have fairly imputed to him direct contributory negligence in the production of the accident, he shows himself to he disentitled to recover. Frech vs. P. W. & B. R. Co., 39 Md., 574; Cooley on Torts, 673. The principle laid down by an eminent English Judge, and which was approved by the Court in Exchequer Chamber, and by the House of Lords, (Daniel vs. Metropolitan Ry. Co., L. R., 3 C. P., 591; Ibid., 5 H. L., 45,) is clearly a correct one, and that is, that it is not ■enough for the plaintiff to show that he has been injured by an accident upon the defendant’s road, and thence to argue that the defendant is liable even prima facie. It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendant might and ought to have resorted to; and further -that the plaintiff should also show with reasonable certainty what particular precautions should have been taken to avoid the accident. Here, according to the contention of the plaintiff, the accident resulted from the unauthorized rate of speed with which the train was run through the town, and the neglect to give signals of the approach of the train. These facts are material, and in regard to which, as we have seen, the evidence is conflicting, making a question appropriate for the jury.

In regard to the first prayer, granted at the instance of the plaintiff, as the statement of a general proposition, it is unexceptionable. It is very general in its terms, it is true, and did not impart much instruction to the jury, as to the value and legal bearing of any particular fact in proof. But the general legal proposition thereby formulated is free from error, however much it may be wanting in specific reference to the facts of the case.

But with respect'to the third prayer of the plaintiff, which was granted, we think there was error. It was well calculated to mislead the jury. It declares that, under the town ordinance, it was negligence per se for the defendant to run its cars through the town at any rate of speed exceeding ten miles an hour; and if it did run its cars at any greater rate of speed, however small the excess, “the defendant was bound to use the highest possible degree of care and caution, which it had the means and power to employ, having regard to the business in which it was engaged.” With respect to the two branches, or rather propositions, embraced in this instruction, it may be observed, that if the running of the train through the town at any rate of speed in excess of ten miles per hour be negligence per se, it would not have been easy for the defendant to escape the consequences of that negligence by the exercise of the degree of care required by the latter branch of the instruction, unless, indeed, it be shown that the negligent act of the defendant in violating the ordinance did not contribute to the production of the injury at all.- The inconsistency aside however, the instruction is objectionable in other respects.

There is no question made of the municipal authority to pass the ordinance, and it simply provides “ that no-' locomotive shall be propelled within the limits of Port Deposit at a greater rate of speed than ten miles per hour, and that any engineer or other person violating this ordinance shall be fined ten dollars for each and every offence.”

This ordinance is general, and is for the protection of the public generally; but the neglect or disregard of the general duty thereby imposed for the protection of every one, can never become the foundation of a mere personal right of action, until the individual complaining is shown to have heen placed in position that gave him particular’ occasion and right to insist upon the performance of the duty to himself personally: The duty being due to the public, composed of individual persons, each person specially injured by the breach of duty thus imposed becomes entitled to compensation for such injury. But he must have been in a position to entitle him to the protection that the ordinance was designed to afford, and he must show how and under what circumstances th'e duty arose to him personally, and how it was violated by the negligence of the defendant to his injury. In other words, it must appear that the negligent breach of the duty imposed by the ordinance was the direct and proximate cause of the injury complained of, and that such injury would not have occurred but for the violation of that duty. Hayes vs. Mich. Central R. Co., 111 U. S., 228, 240, 241; Penn. R. Co. vs. Hensil, 70 Ind., 569; Cooley on Torts, 657-8.

Row, this third prayer of the plaintiff is a mere abstraction, and therefore well calculated to mislead. It does not require the jury to find any causal connection between the negligent act in running the train in violation of the ordinance, and the injury complained of. If the defendant's train was in fact run through the town at a greater rate of speed than that allowed by the ordinance, it may be conceded that such running was of itself negligence, and a violation of the ordinance, for which the engineer would incur liability for the penalty prescribed. But while that may be so, it would be quite immaterial to the case of the plaintiff, unless it be shown that the injury complained of was occasioned by such unauthorized speed of the train, without any direct contributory negligence on the part of the plaintiff himself. If he knew of the near approach of the train in time to get out of the way of danger and failed to do so, he could have no right of action, though the train was run at a rate of speed greater than that allowed hy the ordinance. In such case, the fact that the train was run at an unauthorized rate of speed would, in no way, relieve him of the consequences of his own-negligence, and afford .him a right of action against the defendant. In the abstract form in which the instruction was given, and from the terms Employed, the jury may have inferred that the defendant was liable merely because-of the fact that the train was run at forbidden speed, and that such liability was wholly irrespective of any contributory negligence on the part of the plaintiff. For the reasons assigned, we think there was error in granting the-third prayer of the plaintiff

With respect to the fourth prayer of the plaintiff, which was granted, in view of the facts of the case, we think it ought to have been refused, or if granted at all, it ought to have been in a modified form, to avoid the possibility of misleading the jury. It is certainly true, the motive to self-preservation is a principle of our common nature, and it is but rational to presume, in the absence of evidence to the contrary, that parties act under its promptings in view of impending danger. But, in such cases as the present, there is a counter-presumption, when the proof does not show to the contrary, and that is, that every person charged with a duty involving the safety of himself or others, will perform that duty; so that in fact it is not often the case that these mere presumptions afford much assistance in arriving at correct or just conclusions. They ought not to be indulged to the exclusion of direct evidence to the contrary; and it is only where there is ho reliable proof to the contrary, or there is rational doubt upon the evidence as to the acts or conduct of the parties, that such presumptions can properly be invoked. The jury ought not to be instructed in such terms as would justify them in acting upon the mere presumption of the absence of fault in either party, in disregard of the proof in the case, where there are facts and circumstances to he considered by them. The form of the instruction in this case is the same as that used in several cases that have come before- this Court, and where the instruction has been sanctioned; but the propriety of such instruction must always be determined with reference to the nature and state of the proof before the jury. It will not do to instruct them that it is competent to them, in connection with the facts and circumstances of the case, irrespective of the nature and force of such facts and circumstances, to infer the absence of fault on the part of either plaintiff or defendant, from the known general disposition of men to avoid danger. Such an instruction in many cases would be exceedingly misleading ; and, we think, it was error to give it in this case in the form in which it was given.

(Decided 14th November, 1884.)

It follows that the judgment below must be reversed and a new trial awarded.

Judgment reversed, cmd new trial awarded.