Philadelphia, Wilmington & Baltimore Railroad v. State ex rel. Bitzer

Gjelason, J., delivered tlie opinion of the Court. At the trial of this caso, in the Circuit Court for Carroll County, exceptions were taken by the appellant, to the granting of the three prayers of the appellee, as well as to the rejection of all its prayers, except the seventh, thirteenth, fourteenth and seventeenth, as also to the instruction given by the Court in lieu of the third, fourth, tenth, and eleventh. A motion in arrest of judgment was also filed, which was overruled, and we will dispose of that before considering the prayers. The motion is based on twelve reasons, which are especially assigned in the motion filed. The first and second reasons assigned are, that the appellee did not comply with the third section of Article 65 of the Code, under which the suit is brought, by delivering, with the declaration, to the defendant, or its attorney, a full particular of the persons for whom and in whose behalf the action was brought, and the nature of the claim in respect of which damages were sought to be recovered. The object of this section of the Code was to have the defendant furnished with information, which would enable it to plead to the declaration and make its defence to the suit. In the case of The Baltimore and Ohio Railroad Company vs. The State, use of Woodward, 41 M.d., 297, this Court has said that the particular, when furnished, is intended for the same purpose and has the same effect as a bill of particulars in other cases, and restricts the plaintiff’s proof and limits his recovery to the claim therein stated. The particular is to be given to the defendant for his own benefit, and, as the defendant in this case did not demand it, but filed its pleas without it, it may be considered as having waived its right to have it. But we do not think that this section is mandatory. The — 398 — right of action existed before the declaration was filed, and, in this case, the declaration, when filed, stated the names of the parties for whose use the suit was brought, and described them as the widow and children of Samuel Bitzer, deceased; stated particularly the injury to, and consequent death of, Samuel Bitzér, "and the nature and amount of their claim, and it is difficult to conceive what more particular statement could have been furnished to the defendant. The 65th Article of our Code seems to have been copied from Lord Campbell’s Act of 9 and 10 Victoria, ch. 93, and sec. 4 of that Act has been construed in the case of Murphy vs. Logan, 10 Irish Com. Law, 87. In that case no particular had . been furnished or delivered to the defendant, and that fact was pleaded in bar of the action. To this plea a demurrer was interposed and Perrin, Judge, in delivering the opinion of the Court, said, that the delivery of a particular to the defendant was “ a requirement merely in accordance with the rules and practice of the Court in which the action may be depending. But the right of action accrues prior to the issuing of the declaration, and exists altogether independently of the fact of the -declaration being issued or not. If the defendant require particulars, he should call upon the plaintiff to furnish them; or, in case of his refusal, apply to the Court to compel him to do so and the demurrer was sustained.” The requirement to deliver a “particular,” as provided by sec. 3 of the Code, is merely directory, and in nowise affects the right of the plaintiff to maintain the suit. It is no part of the record; is not even required to be filed, but merely delivered to the defendant or its attorney. Motions in arrest are for matters apparent on the face of the record, and for this reason, as well as for those before stated, the first and second causes assigned, furnish no ground for sustaining the motion. The declaration alleges that Sarah Bitzer is the widow, and the other — 399 — equitable plaintiffs are the children of Samuel Bitzer, that his foot was caught in the imperfect track of the defendant through the wrongful act, default or neglect of the defendant, and not through his own default or negligence, that he was thereby thrown down and the car crushed beneath its wheel truck and body, the left leg and body of said Samuel Bitzer in a horrible manner, thereby causing his death, and the plaintiff claims ten thousand dollars. The declaration, therefore, contains sufficient averments in substance that Samuel Bitzer was rightfully on the defendant’s road in his lawful employment; that the latter’s road was imperfect through its negligence, and that said Bitzer though not negligent himself had his foot caught in the imperfect track of the defendant, and that in consequence thereof the cars which he had in charge, ran over him, and caused his death, 'for which the equitable plaintiffe claim ten thousand dollars damages for the loss sustained by them, in consequence of his, the said Samuel Bitzer’s death. It was not necessary to allege that the defendant’s negligence was such that, if death had not ensued, Samuel Bitzer himself would have been entitled to recover for the injury done him. There was nothing therefore in any of the other reasons assigned, which furnished any ground for sustaining the motion in arrest, and it was therefore properly overruled. The three prayers granted at the instance of the appellee, state the law with respect to negligence and the measure of damages, as it has often been heretofore announced by this Court, in cases arising under the 65th Article of the Code, and no valid objection can be urged against them, and there is evidence in the record to support them, and which was properly submitted to the jury, and they were rightly granted. There was no evidence of any such gross or glaring neglect on the part of Samuel Bitzer, as would justify the Court in saying that it amounted in law to contributory negligence. The evidence of negligence — 400 — on the part of the appellee as well as on the part of the appellant was conflicting, and it was properly left to the jury whose peculiar province it was to consider, and pass upon it. The appellant’s first prayer was, therefore, properly refused. The appellant’s second prayer seeks an instruction that the appellee was not entitled to recover for the various reasons especially assigned therefor. All these reasons* except the fourth, have been disposed of in what we have said with respect to the reasons assigned in the motion in' arrest and the appellant’s first prayer. The fourth will he disposed of in connection with the appellant’s eighth* ninth, twelfth, fifteenth and sixteenth prayers. They are all based on the theory, that if the appellant’s track was out of repair and imperfect through its own neglect, and that in consequence of such imperfect condition of its track, Samuel Bitzer lost his life, that still the appellee was not entitled to recover, because the said Bitzer was a coemployé of the appellant’s employes. This theory is based upon the agreement, set out in the record, between the New Jersey Railroad and Transportation Company, the Camden and Amboy Railroad and Transportation Company, the Philadelphia and Trenton Railroad Company, parties of the first part, the Philadelphia, Wilmington and Baltimore Railroad Company, the appellant, of the second part, and the Baltimore and Ohio Railroad Company of the third part. • This agreement was entered into for the purpose of securing comfort, speed and safety in the through passenger travel between New York and Washington, and to secure harmony of action between said parties to accomplish that object. Whatever effect this agreement might have upon the parties to it, it could not have any upon strangers to it, nor alter nor change the relations of either _ of them towards third parties, nor have the effect of making those, who were employed and paid wages by either of the contracting parties, the co — 401 — employés of the agents and workmen of the other parties, nor make the others liable, either severally or jointly, for any loss or damage caused by the neglect of any one of them, even had the agreement been silent in this respect. But in order to guard against any such result the agreement itself expressly provides, that “if an accident shall happen whereby damages to persons or property shall be incurred, the party on whose road the same shall happen shall alone be responsible.” The road on which the accident, which is the cause of this suit, happened, is admitted to be the road 'of the appellant. The principle invoked in favor of the fourth reason, assigned in support of the first prayer and also in support of the eighth, ninth, twelfth, fifteenth and sixteenth prayers is, that every employe assumes the risk of the negligence of his co-employés. Samuel Bitzer was not employed or paid by the appellant, but was employed by the Baltimore and Ohio Railroad Company, and therefore this principle is not applicable to him, and, consequently, the fourth reason assigned in support of the first prayer cannot be maintained, and that prayer, as well as the eighth, ninth, twelfth, fifteenth and sixteenth prayers were properly rejected. The fifth prayer was rightly refused for the same reason we have assigned for affirming the Court’s ruling upon the first prayer, and that is, that there was evidence from which the jury were at liberty to find that the death of Samuel Bitzer was caused by the negligence of the appellant’s agents. The jury had been instructed by the appellee’s first prayer that they must find negligence on the part of the appellant, or its agents, in order to find a verdict for the appellee, and therefore the appellant had, under that instruction, obtained all that was asked by its sixth prayer, and there was therefore no error in rejecting it. The third, fourth, tenth and eleventh prayers, we think, were well calculated to mislead the jury. They — 402 — contain the proposition that if Samuel Bitzer had been in the habit of driving cars over the track of the appellant for some time before his injury, and that, if that business was dangerous, and that part of his duty was to cut off or detach the cars at a point where the same could be properly done, and had done so without complaint of the condition or construction of the road or track, and that with the use of ordinary observation he could have been aware of its condition and construction, he took on himself the risk of such employment, and the appellee was not entitled to recover. If these prayers had been granted, the jury, although they may have believed from the evidence that Bitzer came to his death by having had his foot caught by a spike, or his heel fastened in a hole, in the appellant’s road, which it was its duty to keep in good condition, might have supposed that such accident was a risk incident to the employment in which he was engaged. The Court did right in refusing these prayers; and the appellant has no just cause to complain of their rejection, because the Court, by the instruction given in lieu of them, told the 'jury, if they found substantially all the facts enumerated in those prayers, that then “the plaintiff is not entitled to recover in this case, if the jury shall find that the accident which caused his (Bitzer’s) death, occurred in consequence of said risk, and not in consequence of a defect or defects in the defendant’s track or road-bed, which the said Bitzer. could not, by the use of ordinary care on his part, have seen and avoided.” This instruction placed all the facts fairly before the jury from which they were at liberty to find either for the appellee or the appellant, as they might find that either the appellant or Bitzer had been guilty of negligence. (Decided 11th July, 1882.) Finding no error in the rulings of the Circuit Court, the judgment appealed from will be affirmed. Judgment affirmed.