Northern Central Railway Co. v. State ex rel. Price

Alvey, J., delivered the opinion of the court. At the trial of this cause in the court below, the plaintiff presented its case to the jury upon two distinct hypotheses, and it now contends that if the facts sustained either of them, it was entitled to recover. The first hypothesis was that the collision of the train with the deceased was caused by the negligence of the defendant; and the second was, that, conceding the deceased to have been wrongfully on the track of the rail road, and thus, by his own negligence, contributed to and brought about the collision, still, there was gross negligence in the subsequent conduct of the defendant’s agents in providing for and disposing of the disabled and apparently dead man, and which was the proximate cause of his death. *The two prayers on the part of the plaintiff, and the fifth prayer of the defendant, as modified by the second of the plaintiff, were granted, and the leading question is now presented, whether these prayers, thus granted, fairly instructed the jury as to the law applicable to both hypotheses of the case. To the plaintiff’s prayers, it has been objected in argument here- 1st. That the injury complained of was caused by the negligence and want of care of the deceased, and that there was no sufficient evidence to be submitted to the jury of such negligence on the part of the defendant as would render it liable, in view of all-the circumstances of the case; and that, therefore, the prayers were without evidence to support them. 2nd. That it was error in the court below to submit to the jury, as was done by the plaintiff’s prayers, the question of negligence, without definition or specific instruction as to what — 436 — constituted negligence and want of care under all the facts and circumstances of the case; and, 3rd. That, assuming the collision to have occurred without negligence or want of care on the part of the defendant, it cannot be held responsible for the subsequent acts and conduct of its employees in their treatment of the deceased, even supposing his death to have been proximately caused by their gross negligence and want of care, as contemplated by the plaintiff’s second prayer. 1. It is doubtless true, that if the deceased, by his own negligence or want of ordinary care and caution, so far contributed to his misfortune, that, but for such negligence or want of ordinary care and caution on his part, the misfortune and damage complained of would not have occurred, this action could not be sustained. And if negligence has been mutual,' in the production of the injury, no action lies, for the reason that, as there can be no apportionment of damages, there can be no recovery. Such negligence, however, must have been concurrent, and formed the proximate cause of the *injury complained of, for if the negligence of the defendant was the proximate, and that of the deceased the remote cause of the injury, the action is maintainable, notwithstanding the deceased may not have been entirely without fault. This principle is settled by many well considered cases, as will be seen by reference to Trow v. R. R. Co. 24 Vt. 487; Kerwhacker v. R. R. Co. 3 Ohio. St. 172; R. R. Co. v. Patton, 31 Miss. 156. The mere negligence or want of ordinary caution on the part of the deceased, as was decided in Tuff v. Warman, 5. C. B N. S. 573) would not disentitle the plaintiff to recover, unless it were such that, but for such negligence or want of ordinary caution, the misfortune would not have happened; nor, if the defendant might, by the exercise of .care on its part, have avoided the consequences of the neglect or carelessness of the deceased. And, as an illustration‘of this principle, Davies v. Maun, 10 M. & W. 545, may be referred to. In that case, the plaintiff, having fettered the fore feet of his donkey, turned it into a public road .or highway, and at the time of the injury, the donkey was grazing on the off-side of the road, which was about eight yards wide, when the defendant’s wagon, with a team of three horses, coming down a — 437 — slight descent, at a smart pace, ran against the donkey, knocked it down, and the wheels passing over it, it died soon after. The donkey was fettered at the time, and it was proved that the driver of the wagon was some little distance behind the horses. The Judge told the jury that, “ though the act of the plaintiff in leaving the donkey on the highway, so fettered as to prevent his getting out of the way of carriages traveling along it, might be illegal; still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and his Lordship directed them, if they thought the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff.” A verdict was accordingly rendered for the plaintiff, and on motion for a new trial, which was heard *before the Exchequer, Lord Abinger said: “ I am of opinion that there ought to be no rule in this case. The defendant has not denied that the ass was lawfully in the highwa3q and, therefore, we must assume it to have been lawfully there. But even were it otherwise, it would have made no difference,. for, as the defendant might,, by the exercise of proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.” That decision was but a fair application of the principle previously announced by Lord Ellenborough, C. J., in Butterfield v. Forrester, 11 East, 60, where he said: “ In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorize another purposely to ride up against them. One person being in fault will not dispense with another’s using ordinary care for himself.” The same general principle was applied in the decision of Bridge v. R. R. Co. 3 M. & W. 244. Indeed, the authorities, both English and American, are numerous and full to the same effect. And, in this case, though the deceased may have incautiously gotten upon the track of the defendant’s road, yet, if he could not, at the time of the collision, by the exercise of ordinary care, have avoided the consequences of • the defendant’s negligence, assuming that there was such, the right to recover exists. If, however, by ordinary care, he might have avoided the consequences of such negligence on the part of the defendant, he — 438 — would be the author of his own misfortune, and, therefore, no action would lie. The obligation is mutual to use care to avoid the consequences of each other’s negligence; the whole matter being for the determination of the jury, as to whose negligence and want of care constituted the proximate and direct cause of the injury. Clayard v. Dettrick, 12 Q. B. 439. And this was very properly put to the jury by the plaintiff’s prayers. In view of these principles, fixing the relative duties of the parties, was there sufficient evidence to be submitted to the jury, of the defendant’s negligence? *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. It is difficult, therefore, to state any general rule more definite than that the defendant was bound, in the conduct of its train, to use such care and caution to prevent injury to persons or property, as prudent and discreet persons would have used and exercised under the circumstances of the case; and that the absence of such care and caution would constitute negligence. We think, however, there was sufficient evidence of negligence to be submitted to the jury. The train was running at a very high rate of speed, and was behind time in reaching the place at which the accident occurred. It does not appear that there was any check in the speed of the train as it approached the crossing of the highway, nor while it was running through the village; and there is some contrariety of evidence as to whether the whistle was blown at all before reaching the crossing of the turnpike road. The night was dark, and there was no watch, or other proper means provided for giving notice to persons who might be upon, or crossing the track, although the place was a public thoroughfare and one much frequented. The train, though running on fast time, ■was provided with but two brakesmen, which, in this particular instance, proved to be altogether insufficient to stop the train within a reasonable distance after the alarm was given. These facts, and all the circumstances of the case, were proper to be considered by the jury; and, in connection with these facts — 439 — and. circumstances, it was competent to the jury to infer the absence of fault on the part of the deceased, from the general and known disposition of men to take bare of themselves, and to keep out of the way of difficulty and danger. Johnson v. R. R. Co. 20 N. Y. 65. It was not necessarily negligence in the deceased, that he was *on the track of the defendant’s road. He may have been attempting to cross it under circumstances that would relieve him of all imputation of negligence. In Warren v. R. R. Co. 8 Allen, 227, it was held by the Supreme Court of Massachusetts, that crossing a rail road track, without looking to see if a train is coming, is not conclusive proof of the want of care. And so, in Megrath v. R. R. Co. 32 Barb. 147, it was held that “ it is1 not always negligence to cross a rail road track at times when a train is not due, or cannot reasonably be expected to pass; nor to cross a rail road track without looking for a train, when no signal of its approach is given by the ringing of a bell or otherwise.” As to the conduct of the defendant’s agents after the collision, in their treatment of the injured man, though apparently dead, it was strongly indicative of the grossest negligence, and an entire indifference to the most ordinary feelings of humanity. The deceased was taken from the pilot of the engine, apparently dead, though showing no external wound to justify the conclusion that life was in fact extinct. Without notice to his family, or to any person who would'take an interest in him, or sending for a physician to ascertain his condition, he was taken into the defendant’s warehouse, and there laid on a plank across some barrels, and locked up alone all night. It was remarked at the time, that the man ought to be examined, and that the place was unfit for him to be placed in. This suggestion, however, was altogether disregarded. The next morning, when the warehouse was opened, it was found that the unfortunate man had, during the night, revived from his stunned condition, and had moved some paces from the spot where he had been laid, and was found in a stooping posture, holding his right leg with his hands, dead, but still warm, having died from hemorrhage of the arteries of his right leg, which was crushed at and above the knee. It had been proposed to place him. in the defendant’s telegraph office, which was a comfortable building, but the telegraph operator objected, and — 441 — *directed him to be taken into the warehouse; a place used by the defendant to deposit old barrels and other rubbish. The physician who attended the inquest, proved that he thought it likely that the deceased became conscious when reaction set in, there being no apparent injury of the skull or brain. Blood would begin to flow upon the restoration of consciousness, and the party could not have lived more than an hour or two after blood began to flow. From these facts it was clearly competent to the jury to conclude that there was negligence. 2. The next proposition is whether the question of negligence was properly referred to the jury, by the plaintiff’s prayers. And this, we think, cannot now be regarded as an open question in our courts, in the trial of causes like the present. Worthington v. B. & O. R. R. Co. 21 Md. 275; Merchants Bank v. Bank of Commerce, 24 Md. 53. Negligence, in a case like this, is not so much a question of law, as it is a question of fact, depending for its determination upon a consideration of all the attending facts and circumstances in connection with the ordinary habits, conduct and motives of men. For the trial and determination of such a question, a jury of experienced and intelligent men are peculiarly adapted. It is very true, negligence may, in many cases, become a mere question of law, to be determined by the court, upon a given state of facts, either admitted or to be found by the jury. It is not, however, the duty of the court to draw inferences and make deductions from evidence. To do that falls within the well defined province of the jury, that courts should ever be careful not to invade. Where the facts attending the transaction are at all complex, or unusual in their character, the existence of negligence must be deduced as an inference from all the facts and circumstances disclosed, after tracing their relation to the matter in issue, and considering their force and effect. Beers v. R. R. Co. 19 Conn. 569. But it has been objected to the plaintiff’s prayers, which were granted as instructions, that the questions of care and *negligence were propounded to the jury in terms too general to be safe guides in the formation of their verdict. That the court should have been more specific, and have defined, for the enlightenment of the jury, what constituted ordi — 442 — nary care and gross negligence, in contemplation of law. We think, however, that there was no error committed in this particular. If the defendant desired a more specific instruction upon the subject, it should have asked it. By failing to ask such an instruction we must suppose it was contented and willing to have the case passed upon by the jury, without any more definite instruction from the court than was actually given. Indeed, we are justified in this supposition, from the fact that the defendant proposed to ¿ubmit the question of negligence to the jury, by its own prayers, in terms not more definite and specific than those employed in the prayers of the plaintiff. It has, therefore, no right to complain. 3. We are next brought to the question, whether the defendant be liable for the negligence of its agents in their treatment and disposition of the deceased, subsequent to the collision. This, we think, free from doubt or difficulty. From whatever cause the collision occurred, after the train was stopped, the injured man was found upon 'the pilot of the defendant’s engine, in a helpless and insensible condition, and it thereupon at once became the duty of the agents, in charge of the train, to remove him, and to do it with a proper regard to his safety and the laws of humanity. And if in removing and locking up the unfortunate man, though apparently dead, negligence was committed, whereby the death was caused, there is no principle of reason or justice upon which the defendant can be exonerated from responsibility. To contend that the. .agents were not acting in the course of their employment in so removing and disposing of the party, is to contend that the duty of the defendant extended no farther than to have cast off by the wayside the helpless and apparently dead man, without taking care to ascertain whether he was dead or alive, or if alive, whether his life could be saved *by reasonable assistance, timely rendered. For such a rule of restricted responsibility no authority has been produced, and we apprehend none can be found. On the contrary, it is the settled policy of the law, “ to give such agents and servants a large and liberal discretion, and hold the companies liable for all their acts, within the most extensive range of their charter powers.” 1 Redfield on Railways, 510; Derby v. R. R. Co. 14 How. 468, 483. The question, as to whether the agents were acting in — 443 — the course of their employment, was submitted to the jury, as was done in the recent case of Whatman v. Pearson, Law Rep. 3 C. P. 422, decided at Easter Term, 1868; and the defendant had no right to ask a more favorable disposition of it. We think, on the whole, the court was right in granting the prayers of the plaintiff. As to the defendant’s first, second and fourth prayers, and the fifth as offered, it follows necessarily, from what we have said in regard to the case, that they were properly rejected. By the first of these prayers the plaintiff was sought to be precluded from recovery if the deceased, “ in any way, contributed to cause the collision which resulted in his death." Thus disregarding the distinction between the remote and proximate cause, and altogether ignoring the conduct of the agents in treating the deceased after the collision. By the second prayer of the defendant, the right of the plaintiff to recover would have been made to depend upon the jury’s finding that collision was caused by the negligence of the defendant; thus in this prayer also, excluding the subsequent conduct of the agents as a cause of the death. It also sought to take the whole case from the jury, upon the ground that there was no evidence from which the jury could find negligence of the defendant in causing the collision. This was clearly erroneous. The fourth prayer was also erroneous, for the reason that it sought to exclude from the consideration of the jury, “ all the evidence relative to the conduct of the defendant’s agents towards the deceased, subsequent to the collision.” *The fifth prayer was also objectionable as it was offered, because by it the plaintiff’s right to recover was made to depend solely upon the negligence of the defendant in producing the collision, without any regard whatever to the subsequent negligence of the agents in causing the death of the deceased. This could not have been granted as an unqualified instruction. As to the question made by the second bill of exception, we think the court below committed no error in allowing counsel, under the circumstance stated, to withdraw their concession, Upon a misunderstanding as to the proper construction of the prayer, it became the duty of the court to construe it, and if it — 444 — was found not to express the law applicable to the case, in the absence-of concession, to withdraw it from the jury. This was done, -and we think properly. There being nothing in the rulings of the court below of which error can be predicated, the judgment appealed from must be affirmed. Judgment affirmed.