Cumberland & Pennsylvania Railroad v. State ex rel. Fazenbaker

Stewart, J., delivered the opinion of the Court. William Eazenbaker was killed on the 26th March, 1870, by the explosion of a locomotive belonging to the appellant; and the action was brought in the name of the State, for the use of his widow and children, to recover damages from the appellant on account thereof. Exception has been taken, by the appellant, to the rulings of the Circuit Court, in granting the appellee’s first prayer, and rejecting the first, second, fourth and fifth prayers of the appellant, and modifying its first and fourth prayers. The prayer of the appellee submitted to the jury, amongst other matters, two prominent propositions, which form also, leading considerations in the several prayers of the appellant. First. — The question of negligence on the part of the deceased, contributing to his own death, which, if found to be true, would defeat the action. To authorize a recovery, the prayer requires the jury to find from the evidence, that at the time of the accident, he was using [169] ordinary care, and did not contribute to his own death, by the want of ordinary care. The proposition is presented both affirmatively and negatively, that is, before the jury, according to the theory of the prayer in this particular, could find for the plaintiff, they must be satisfied, not only that the deceased was using ordinary care at the time of the accident, but that he did not contribute to his own death by the want of ordinary care. The fifth prayer of the appellant merely involves this question, and requires the Court to determine it. Second. — Reasonable skill, care and diligence on the part of the appellant, or its agents, which if found to be true, would relieve the appellant from responsibility for the accident. The first, second, third, fourth and sixth prayers of the appellant involve the consideration of this branch of the same question. What constituted negligence, or ordinary care, or the want of it in the party, contributing to his death; and the reasonable skill, care and diligence exercised on the part of the appellant, to relieve it from responsibility for the fatal occurrence, are questions, according to the nature of the evidence in this case, to be determined by the jury, from all the facts and circumstances. It is their province, from the controverted facts to make the reasonable deductions, and these questions must be referred to the jury. Such is the rule and practice, although in some cases the question of negligence may be a legal one for the Court to decide. State, use of Miller vs. B. & O. R. R., 29 Md., 252; State, use of Price vs. B. & O. R. R., 29 Md., 420; Balt. City Pass. R. W. vs. Wilkinson, 30 Md., 224; B. & O. R. R. vs. Shipley, 31 Md., 368; B. & O. R. R. vs. Fitzpatrick, 35 Md., 44; B. & O. R. R. Co. vs. State, use of Dougherty, 36 Md., 366. But the Court will always instruct the jury, if applied to, as to the degree of diligence or skill and care which the law imposes upon the respective parties, and the jury are to determine if the requisite conduct has been observed. [170] The-fifth prayer of the appellant proposed, virtually to withdraw the question of negligence, or want of ordinary care on the part of the deceased, from the jury, and to have it determined by the Court, upon the proposed hypothesis of facts, as a question of law, and it was on that accoitnt properly rejected. In our opinion, the facts stated in the prayer do not authorize the Court to’ pronounce, as matter of law, that they constitute such contributory negligence as would prevent a recovery by the appellee. The case is not of that character in its circumstances as to warrant the intervention of the Court, in withdrawing the question from the jury. The first and fourth prayers of the appellant, without the modifications made by the Circuit Court, proposed to submit to the jury, upon the hypothesis of facts, assumed respectively in each, that there could be no recovery, unless there was proof that the appellant did not use reasonable care in procuring sound machinery, and faithful and competent employees, and required the Court, at the same time, to instruct the jury; that there was no evidence to show want of such reasonable care. Evidence had been adduced, and whether sufficient or not was to be determined by the jury; and the Court, very properly, refused the prayer as presented, and made the modification, which left the question, whether reasonable care had been observed by the appellant, to be found by the' jury. ■ The second prayer of the appellant was obnoxious to the same objection as the first and fourth, in assuming there was no proof that the appellant did not use reasonable care in procuring the engine and selecting the employees. The appellant’s third and sixth prayers presented distinctly the question of reasonable care on the part of the appellant, in selecting the co-employees of the deceased, and the procuring engine No. 11, omitting the assump [171] lion that there was no evidence applicable thereto, and were granted. The jury having found adversely to the theories of these prayers, could not have been satisfied, from the evidence, that such reasonable care had been observed by the appellant. (Decided 19th December, 1872.) In granting the third and sixth prayers of the appellant, the Circuit Court could not have consistently allowed its first and fourth prayers, without the modification made. From a careful consideration of all the prayers granted, to wit: the appellee’s first and appellant’s third and sixth absolutely, and first and fourth modified, and the seventh of the appellant conceded, we think the jury were properly instructed as to the law applicable to the facts of the case, and that the appellant has no ground of complaint, so far as the law pertinent thereto has been expounded. If the jury have misapprehended the facts, that is a matter which this Court has no right to assume, nor power to correct. Judgment affirmed.