Western Maryland Railroad v. Kehoe

McSherry, C. J., delivered the opinion of the Court. This suit was brought to recover damages for a personal injury sustained by the appellee in consequence of the alleged negligence of the appellant. With respect to some of the circumstances testified to there was conflict in the evidence, but some of the facts seem to be unquestioned. According to the plaintiff’s version of the occurrence he was driving alone in a buggy on July the thirteenth, eigh — 448 — teen hundred and ninety-five, about ten or ten-thirty P. M., along a public road in Baltimore County called the Seven Mile Lane, and his two brothers, in another buggy, were twenty or thirty yards in advance of him. This Seven Mile Lane is crossed at grade by the main track and a siding of the Western Maryland Railroad, at a place called Howardsville. His brothers crossed the tracks and when the plaintiff neared them he brought his horse down to a slow walk, looked and listened, and not seeing or hearing any cars he attempted to cross. His horse, he says, gave a jump and started off. He tried to check the horse and then something struck the buggy on the right side and the plaintiff remembered nothing moré. On the evening in question a freight train of the defendant company, proceeding from Baltimore westward, stopped at Howardsville station to remove from the siding two of the five cars that were there. The whole train, accordingly, stopped east of the crossing, that is’, before reaching the crossing. The engine after being cut loose from the rest of the train moved over the crossing up to the switch, about one hundred and fifty feet west of the crossing. It then backed down the switch' into' the áiding, drew out the five cars therefrom to the main track, shoved the rear one, a box car in charge of a brakeman, down the main track towards the detáched part of the train, dropped three gondola cars, also in charge of a brakeman, back over the switch into the siding, and then with the remaining car backed down the main track and coupled to the train. There is a down grade from the switch post to the crossing, and the cars drifted down both the main track and the siding at the rate of four or five miles an hour. Th¿ brakeman in charge of the box car testified that he saw a buggy pass rapidly over the tracks in front 'of his car, and immediately afterwards a second buggy attempted to cross, but was struck by his car, and he instantly called out, "stop the cars.” In a moment afterwards the train hands found the plaintiff lying between the main track and the siding from six to-twelve feet eást of the east mar — 449 — gin, and therefore outside the limits of the crossing, with one leg over the inner rail of the siding. Over this leg the gondola cars had passed, crushing it so badly that amputation below the knee became necessary. There was no evidence adduced on the trial to controvert or question the fact that the plaintiff was, when run over, wholly off the crossing and wholly on the company’s right of way. On the part of the defendant it was shown that the plaintiff and his brothers, together with others, had been drinking quite freely during the afternoon and evening ; that they were speeding their horses—driving in a gallop—down the Seven Mile Lane towards the railroad, and that within fourteen feet of the track the plaintiff drove into a post supporting a signal, tore off the left rear wheel of his buggy and dashed across the track on three wheels without the buggy coming in contact with a car. It is a fair inference that in thus crossing the track he was thrown out of the buggy, not because the buggy was struck by a car, but because the left rear wheel being off the buggy tilted to that side, and upon that side he fell. It was further shown that the brakeman who was in charge of the three gondola cars that must have caused the injury to the plaintiff by running over his leg, because they were the only cars that passed down the siding after the plaintiff attempted to cross, was standing between the first and second cars, and that he saw no one on the track ahead of him and heard no shout to stop the cars. No employee of the company saw the plaintiff lying on the track before he was run over. It was also proved by a disinterested witness that having heard the noise made by rapidly approaching horses and then a crash—possibly the crash against the signal-post—he went to his window and from there saw a dark figure lying on the track of the siding, and at the same instant he noticed the gondola cars moving along the siding over the crossing towards the figure, over which they passed in a moment; and upon hurrying to the spot he found the plaintiff had been injured. Upon the conclusion of the evidence the plaintiff pre — 450 — sented five and the defendant eleven, prayers for instructions to the jury. The plaintiff’s fourth and fifth prayers were granted, and his first, second and third and all of the defendant’s were rejected. The verdict and judgment were for the plaintiff, and the defendant has appealed. The fourth prayer of the plaintiff is in these words: ‘ ‘ Even though the jury believe that the plaintiff was guilty of a want of ordinary care and prudence in crossing or attempting to cross .the defendant’s tracks under the circumstances testified to before them, yet, if they further find, that the defendant by its servants and agents could have avoided the injury complained of by ordinary care in the management of its cars, after they saw, or by the exercise of ordinary care might have seen the plaintiff lying in the track in the position described by the witnesses, then the plaintiff is entitled to recover.” Now, actionable negligence consists in an inadvertent breach of a legal duty that is due.' “ Some relation of duty public or private, special or general must exist, either by contract or as an implication of public policy, before one man becomes liable to another for the consequences of a careless act or omission on the part of the first man which causes injuiy to the second man, and where such duty does exist and such careless act or omission occurs causing an injury in direct and regular sequence, the careless act becomes in the eyes of the law actionable negligence for which the pai'ty injured has a right of action against the person inflicting the injury.” Pollock on Torts, 352; Nat. Sav. Bk. v. Ward, 100 U. S. 195 ; notes to Curtin v. Somerset, 12 L. R. A. 322. The legal duty whose breach is negligence has reference to and is measured by some correlative light of another with which it is co-cxtensive; and such a legal duty has been defined by Dr. Wharton as “ that which the law requires to be done or forborne to a determinate person or to the public at large, and is con-elative to a right vested in such determinate person or in public.” Whar. on Neg., sec. 24. This breach can consist, either, in the failure — 451 — to do that which ought to be done, or in doing that which ought not to be done. Heaven v. Pender, L. R. 11 Q. B. 506. But the duty on the one side is only the correlative of the right on the other side ; and hence the duty to act otto refrain from acting cannot be extended beyond the right to have the act done or refrained from. Beyond the limits or scope, therefore, of a particular right, as that right is defined, there is no corresponding legal duty due ; and if there be no duty due there can be no breach and consequently no negligence. Kahl v. Love, 37 N. J. L. 5. The fourth prayer granted by the Court below comprises two conflicting propositions, either one of which, if sufficiently supported by evidence, would present a good cause of action ; but both of which, because conflicting, cannot be combined in one and the same instruction. The conditions under which a recovery could be had on the one are essentially different from those which must exist to sustain a recovery on the other. And this is so because the right of the plaintiff and the consequent and correlative duty of the defendant in the one instance are widely and essentially different from the right and its reciprocal duty in the other. As the rights are dissimilar the duties measured by them are likewise variant. The prayer is founded on the postulate that the plaintiff was guilty of negligence in crossing the tracks. Proceeding upon this assumption it sets forth as one cause of action—as one ground of recovery—a breach of the duty which the defendant owed to the plaintiff not to* run over him after its servants saw him on the track ; and it sets forth as the other or conflicting cause of action or ground of recovery, a breach of duty in not knowing or seeing that he was in fact lying on the track. It is obvious, then, that the one duty arose from a knowledge on the part of the company’s servants that the plaintiff was in a place of peril; and that the other duty arose from the servants' want of knowledge of that peril, and a want of knowledge owing to a lack of due care when the servants were bound to know- or to anticipate that the peril existed or might exist. — 452 — As no one has a right to be negligently or wrongfully on a railroad track, the company owes no duty to a person so situated to anticipate that he will be in such a position ; but if its servants see him in a place of peril, though he be wrongfully or negligently there, then the duty arises to avoid injuring him if possible. The duty which the company owes to a such a person originates only "when the perilous position is seen or known by the company’s servants. When, therefore, a plaintiff is wrongfully or negligently on the tracks of a railroad in a position of peril, as the prayer we are considering assumes was the fact in the case at bar, the duty of the company to use due care to avoid injuring him arises at the moment the servants of the company see and become .aware of his peril; and hence, to sustain this branch of the prayer, it was essential for him to show, first, that the company’s servants had knowledge of his peril; secondly, that they had that knowledge in time to arrest an injury; and thirdly, that they failed to exert proper care to avoid the injury after acquiring knowledge of the peril. Until the employees are made aware of the peril arising from an act of negligence on the part of the plaintiff, they are under no obligation to assume that he will be negligent or will be in a dangerous place which he has no right to occupy ; and consequently they owe him no duty to anticipate that he will be where he ought not to be, or to guard in advance against the possible or even probable results of his unknown wrongful occupancy of the tracks. And as they owe him no such duty their failure to perform it is not an act of negligence on the part of the company. Balto. Traction Co. v. Ringgold, 78 Md. 409 ; Kean v. B. & O. R. R. Co., 61 Md. 154. There is not a pretence that any employee of the defendant saw the plaintiff lying on the siding, and it was obvious error, in view of the special exception taken to this.prayer and founded on the want of such evidence, to leave to the jury the finding of a fact which there was no evidence whatever to establish. If, being where he was as the resúlt of his negligent attempt to cross the tracks he was not seen by the employees of the defendant, then the duty to use due care and caution not to — 453 — injure him, despite his own negligence, never arose ; because, as we have said, that duty, under these conditions, has its origin in the fact that he was seen and that his peril was known. The second cause of action relied on in the prayer is that the company is liable if its servants, by the exercise of ordinary care, might have seen the plaintiff lying on the track in the position described by the witnesses, notwithstanding he was guilty of negligence in attempting to cross in the way he did. This proposition of the prayer assumes as a legal principle that it was the duty of the employees, “under the circumstances testified to,” to have seen the peril of the plaintiff, which had resulted, as the prayer concedes, from his own negligence; and that their failure to see that peril, though the peril arose from the plaintiff’s carelessness, and though he was in a place where he had no right to be, was a breach of the legal duty due the plaintiff, and was, therefore, negligence on the part of the defendant that warranted a recovery. The extent and limits of the defendant’s duty are determined and defined by the scope of the plaintiff’s correlative right. Now, the plaintiff had the right to be on the highway and the right to use it in crossing the tracks of the company. The railroad company had an equal right to cross the highway with its tracks and with its cars upon the tracks. The right which the plaintiff had created a reciprocal duty on the part of the company and imposed upon it the obligation to use due care that the plaintiff should not be injured by its employees whilst he was lawfully exercising his undoubted right to use the highway, as a highway, over the railroad crossing. But this duty or obligation on the part of the defendant was not broader or more extensive than the plaintiff’s right to the use of the highway. His right to use it as a crossing gave to him no right to use it for a totally different purpose. And his right to use it at all was obviously qualified by an obligation on his part to exercise proper care himself in using it; and hence his right to use it with due care gave him no right to use it recklessly. His right was a right of transit along the highway and across — 454 — the tracks, and to that extent the duty of the company to use due care not to abridge or invade that right was imperative, and carried with it the obligation to exercise that degree of diligence which might be necessary to avoid an injury to him whilst he was in the lawful enjoyment or pursuit of that right. This obligation of the company did not go farther or require the company to anticipate, either, that the plaintiff would be guilty of negligence in using the highway, or that he would use it or attempt to use it for a purpose not within the limits of his admitted right. As to those unwarrantable uses that are beyond and outside the scope of his legitimate right, no duty to guard in advance against their consequences is imposed by the law; and necessarily, therefore, no negligence can be predicated of a,failure to take such precautions. All. railroad companies are under an imperative obligation, upon approaching a road crossing, to use due care and caution to avoid injury to others lawfully traversing the highway ; and to the extent that they fail to employ that care and caution they are responsible for injuries resulting from such omissions. But this duty is only co-extensive with the correlative right of the individual to use the highway for purposes of transit, and clearly imposes no obligation on the company’s servants to be on the lookout for persons negligently lying on the track outside of the limits of the highway, for that is not a use of the highway at all. Now, if the plaintiff was lying beyond the limits of the highway with his leg across a rail of the siding, as testified to by all of the witnesses who saw him after the accident, he was obviously not then using the highway for the only legitimate purpose which he was authorized to use it—he was not in the exercise of the right which he possessed—and there was clearly no obligation imposed by law on the employees of the defendant to look for him where he was or to assume that any person might be there when the cars drifted down the siding towards the crossing; and if there w.as no such obligation, their failure to see him where he had no light to be was no breach of duty owed to him, and was, therefore, not negligence. — 455 — (Decided June 17th, 1896). There is no analogy between a case like this' and cases arising out of injuries inflicted by street railway companies upon persons who have an equal right with the railways to use the public thoroughfares for travel. Cook v. Baltimore Trac. Co., 80 Md. 551 ; Lake Roland Co. v. McKewen, 80 Md. 593. Every portion of a street railway’s track is a public crossing, because persons have the right to cross those tracks at any point along the thoroughfare ; and hence the obligation on the part of the company’s employees to keep a constant outlook for persons crossing or approaching the track extends to the whole line of the road. It must be understood that what we have said in discussing the fourth prayer is based upon the assumption which the prayer itself adopts—that the plaintiff’s position on the tracks was due solely to his own negligence. This was the hypothesis upon which the case went to the jury. If, on the other hand, the jury had been required to find that the plaintiff’s position on the track when he was run over by the gondola cars was the result, not of his own negligence, but of the carelessness of the defendant in striking the buggy with its car, as was the theory upon which the plaintiff’s first, second and third prayers were constructed, a different state of case would have been presented. We see no reason why those prayers should not have been granted. Upon well-settled principles which have been so often announced that no useful purpose would be served by repeating them, we think there was error in refusing to grant the defendant’s fifth, sixth, seventh, eighth and tenth prayers ; but we discover no error in the rejection of the others. From what we have said it is apparent that there was error in granting the plaintiff’s fourth prayer, and because of that error, and because of the rejection of the defendant’s fifth, sixth, seventh, eighth and tenth prayers, the judgment will be reversed, with costs, and anew trial will be awarded. Judgment reversed, with costs above and below, and new trial awarded.