Kean v. Baltimore & Ohio Railroad

Alvey, C. J., delivered the opinion of the Court. In the trial of this case in the Court below the matters in issue were submitted to the jury, and this Court is not required, by any ruling that was made, to review the facts of the case. We have only to deal with the legal propositions as we find them embodied in the prayers offered by the respective parties. And the legal propositions involved and really applicable to the case would seem to be few and simple, and such as have been announced by this Court in repeated decisions. The action having been brought for the alleged negligence of the defendant, whereby the plaintiff was injured, the general and leading proposition is, that the plaintiff must show; the injury he received was occasioned exclusively by the negligence of the defendant. He is certainly not entitled to recover for the consequences of any negligence of his own. If therefore it be found that the plaintiff has himself been guilty of any negligence or want of ordinary care that has direcily contributed to cause the accident, he can have no cause of action against the defendant for the injury received, though the latter may likewise have been guilty of negligence. And this whether the plaintiff was sober or drunk at the time the accident occurred. This general proposition, however, is subject to another which is equally well established, and that is, that though the plaintiff may have been guilty of negligence, and that negligence may, in fact, have remotely contributed to the production of the accident, yet, if the defendant could, in the result, by the exercise of reasonable care and diligence, in view of the circumstances of the case, have avoided the accident, the plaintiff’s negligence, being the more remote cause, will not excuse the defendant. In this case, therefore, if the plaintiff was in fact drunk, and failed to observe the reasonable precautions to avoid danger to himself while in the act of crossing the defendant’s road tracks, or [168] ■while upon the tracks of the road, though improperly there, and under circumstances to constitute negligence on his part, yet, if the defendant’s servants in charge of the train, after discovering the perilous situation of the plaintiff, could, hy the exercise of reasonable care and diligence, have avoided the accident, they were hound to do so. If they possessed knowledge of the plaintiff’s situation, and failed to make proper and reasonable exertions whereby he could have been saved, the defendant would he liable, though it was by reason of the negligence or drunken condition of the plaintiff that he was found in the situation of danger. In such case their failure to use due care and exertion would constitute negligence which would form the direct and proximate cause of the injury. But, on the other hand, if the plaintiff was on the crossing, or at any other place on the road tracks of the defendant, in such condition as not to be able to take care of himself, or paid no heed to the warnings of the approach of the train; or if from negligence, or reckless indifference to the perils of his situation, he failed to observe the precautions necessary to his safety, and his situation was not known to those in charge of the train, and,' while observing a careful lookout, was not discovered by them in time, by the use of reasonable care and diligence, to save him from injury, then-his own want of care and reckless negligence in putting himself in such place of danger, would deprive him of all ground of action against the defendant. And this would be the case though there may have been negligence on the part of the defendant in detaching the engine from the cars and allowing the latter to run down the switch hy their own momentum, or by the force of the. grade. In such case, the negligence would be mutual or concurrent, and that of the plaintiff so directly contributing to the production of the accident as to preclude the right of recovery. With these well settled principles in view, there is but little difficulty in passing upon the several prayers for in [169] struction that were ruled upon by the Court helow. The theory of the first prayer offered hy the plaintiff would seem to he correct enough, though it is greatly wanting in explicit reference to the facts hearing upon the question of the contributory negligence of the plaintiff. The very general terms in which that question was put to the jury, hy that prayer, hardly gave them an intelligent guide for their consideration of the proper relation of that question to the other facts upon which the plaintiff sought to recover. Generalities, such as are employed in that prayer, in ordinary contemplation, mean little or nothing ; and the modification of the prayer by the Court did not add much to its perspicuity. As, however, the case is to he remanded for retrial, because of other defects in some of the instructions given, the defects suggested in the first prayer may then be corrected. The second prayer offered by the plaintiff was properly rejected. It ignored the evidence of the contributory negligence of the plaintiff, and based the right of the plaintiff to recover too exclusively upon what was supposed to be the original negligence of the defendant. It failed in fact to direct the mind of the jury to the real question in the case, upon which the right to recover turned; that is, the negligence of the plaintiff himself, and the failure on the part of the defendant to use reasonable care to avoid the consequences of such negligence. In granting the third prayer offered hy the defendant we think there was error. By that prayer the Court was required to say to the jury, that if the plaintiff was drunk, and hy his drunkenness he had deprived himself of the exercise of his faculties, and that he would have been enabled, hut for that condition, to have avoided the collision and prevented the injury complained of, the plaintiff could not recover, “unless the jury should find, that the defendant, by its agents, was guilty of wanton or wilful neglect, in not stopping the cars after the plaintiff was discovered on the track,” [170] This is manifestly too strong a proposition. As we have already stated, it was the duty of the defendant, upon discovering the plaintiff upon the track, to use reasonable care and diligence to avoid the accident. It is not consistent with that rule of duty to instruct the jury that any conduct of the defendant's servants short of wanton or wilful neglect of duty, (as those terms might be understood by the jury,) in not stopping the cars after discovering the plaintiff on the track, would be justifiable ; and such proposition is not sanctioned, we think, either by reason or authority. As before said, if the defendant discovers the negligence of the plaintiff in time, by the use of ordinary or reasonable care, to prevent the injury, and fails to make use of such care for the purpose, he is justly chargeable with reckless injury. But, in such case, to enable the defendant to make a defence, grounded upon the negligence of the plaintiff, he must show that he used, upon discovering the negligence of the plaintiff, reasonable and proper care to avoid the consequences of that negligence. Without this the defence cannot be maintained. The seventh prayer of the defendant, which was granted, is too general in its terms, and fails to define with precision the relative duties of the parties, with reference to the facts of the case. It would seem, moreover, to be inconsistent with some of the other propositions granted by the Court. And the eighth, prayer of the defendant, also grantedj is defective in omitting to submit to the jury the question as to the exercise of care and diligence on the part of the defendant, to avoid the consequences of the plaintiff's negligence. Under the local law for Frederick County, where this case was tried, this Court is required to review the rulings and decisions of the Court below excepted to by the appellee as well as those excepted to by the appellant. (Code, Pub. L. Law, Art. 11, secs. 41, 42.) The defendant ex [171] cepted to the granting of the prayers on the part of the plaintiff, and to the rejection of several offered by the defendant. ^ (Decided 9th January, 1884.) The plaintiff’s third prayer which was granted, we think ought to have been rejected. It is too general and indefinite to be a safe guide to the jury in a case like the present. It failed to bring to the attention of the jury any of. the facts in relation to the alleged negligence of the plaintiff, exfcept only the facts that he may have been drunk, and was on the defendant’s road south of the crossing. As the prayer concluded to the right of the plaintiff to recover, all the facts available to the defence ought to have been submitted to the jury. We discover no valid objection to either the first, second, fourth, fifth, sixth or ninth prayers of the defendant, and think they ought to have been granted. All these prayers, except the ninth, conclude against the right of the plaintiff to recover; and upon the principles we have stated, each of these prayers (except the ninth) would seem to present upon the facts being found as therein stated, a good defence to the action. The tenth prayer of the defendant we think was properly rejected. The questions raised in the defendant’s first and second bills of exception taken to the admissibility of evidence, have not been pressed in argument, and we do not understand that those exceptions are relied on. The use of the evidence objected to is limited and restricted by the second and ninth prayers of the defendant, which we say ought to have been granted. For the errors in the rulings excepted to by the plaintiff the judgment must be reversed and a new trial ordered. Judgment reversed, and new trial awarded.