Price v. Philadelphia, Wilmington & Baltimore R. R.

Roberts, J., delivered the opinion of the Court. This action was originally brought in the Circuit Court for Harford County and removed thence to the Circuit Court for Cecil County for trial. The plaintiff, at the time of the accident, lived at Leyre’s Point, on the west side of Bush River, in Harford County. On the morning of the 8th of July, 1892, he purchased at Magnolia Station, on the appellee’s road, an excursion ticket to Baltimore which entitled him to a return ride to Magnolia. He rode to Baltimore and in the evening of the same day he returned over the appellee’s road in the direction of Magnolia Station. There is nothing in the record to show when he left the train or what became of him, until seen by William Gunther, who together with other employees of the appellee were engaged in preparing timber for a bridge over Bush River. Gunther supposing plaintiff was about to cross the bridge, as he lived in that direction, warned him to be careful as there were trains passing ; he replied that — 510 — he was not afraid of the cars. The plaintiff testifying in his own behalf proved that he had been drinking and shortly after he left Bay View Station on his return trip, the whiskey he had taken “ took great effect on him ” and he lost consciousness, and never regained it, until one month thereafter, when he found himself at the Baltimore City Hospital under treatment for the injuries which he had received and that he does not know how he was injured, except from what he has been told by others. The testimony of John Donahoo, who testified for the plaintiff, shows that “ on an evening, in a summer two or three years ago, he was standing at his house before sundown intending to go fishing at a bridge on defendant’s road; that before leaving his house he looked towards said bridge and saw a man sitting on the railroad, where it passes over the embankment, or approach, to the bridge; that he walked in the direction of the embankment where the man was sitting and when he got to a point distant from him of about tw'o hundred yards, he saw a freight train coming from the direction of Baltimore and stop; approaching the train he found that the man had been struck and was lying between the railroad tracks ; he was the only one there excepting the trainmen ; one of the trainmen told witness that he saw something on the railroad, but could not tell what it was, whether it was a hog, or calf, or what; that there is a clear unobstructed view of the embankment whereon the appellant was sitting when struck, of three or four miles, the road being perfectly straight and nearly level.” Upon the conclusion of the testimony for the appellant, the appellee prayed the Court to instruct the jury “ that there is no evidence in this case legally sufficient to entitle the plaintiff to recover.” The Court granted this prayer, which was excepted to by the plaintiff. The only question arising on the appeal is the sole inquiry as to whether the prayer was properly granted. The appellee having offered no testimony the case rests entirely upon the effect of the appellant’s testimony." — 511 — To entitle the appellant to recover in this action, the burden is upon him to show, ist, that the appellee has neglected its duty, and 2ndly, that the injury which he has sustained is the direct consequence of such neglect of duty. It not infrequently happens that in cases of this character a third question presents itself for consideration. We refer to the question of contributory negligence on the part of the plaintiff, to support which is incumbent upon the defendant, unless the plaintiff has clearly demonstrated that he has by his negligence or want of caution, directly contributed to the injury for which he is seeking to recover damages. In such a case the question may become one of law for the Court to dispose of as upon a demurrer to evidence, and nothing remains for the jury to consider, or pass upon. This Court has on repeated occasions been required to consider questions of this nature and it has uniformly maintained the view herein expressed. N. C. R. Co. v. Burns, 54 Md. 113; B. & P. R. Co. v. Stansbury, Id. 648; State, use of Bacon, v. B. & P. R. Co., 58 Md. 482; B. & O. R. R. Co. v. State, use of Allison, 62 Md. 479; State, use of Ricketts, v. B. & O. R. R. Co., 69 Md. 498; State, use of Schroder, v. B. & O. R. R. Co., Id. 551. The facts of this case as hereinbefore stated show that the plaintiff was in a helpless state of drunkenness and fell asleep or wás unconsciously sitting upon the railroad track; that he left the train at a point west of Bush River bridge and under the influence of the whiskey which he had drunk he sat down on the railroad track at a most perilous place, notwithstanding he had been warned by Gunther of the danger of passing trains, and there waited until struck by the engine of the defendant. The evidence shows that the point where he was sitting when injured, could be seen for a distance of three or four miles looking down the track in an easterly direction, but there is not a vestige of proof in the record which tends to show that a man was seen on the track by any of the trainmen. By one of his witnesses the plaintiff proved that one of the trainmen told him that he saw some — 512 — thing on the railroad, but could not say what it was. It was undoubtedly the plaintiff, but this inference is drawn' from facts and circumstances, a knowledge of which the trainmen could not possibly have had—so far certainly as the testimony in the record discloses. In the case of Kean v. B. & O. R. R. Co., 61 Md. 168, Alvey, C. J., delivering the opinion of the Court, says : “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.” A learned writer upon the subject of contributory negligence has said that “ Drunkenness is'a wholly self-imposed disability, and in consequence is not to be regarded with that kindness' and indulgence which we instinctively concede to blindness or deafness, or any other physical infirmity. • Trespassers go at their peril. That is a settled law. Much more is it just to hold that they make themselves drunk at their peril. Disabilities, moreover, of any kind are to be a shield, and never a sword. It would be a strange rule of law that regarded a certain course of conduct negligent and blame-worthy upon the part of a sober man, but that held the same conduct, on the part of the same man, when intoxicated, venial and excusable. Drunkenness will never excuse one for a failure to exercise the measure of care and prudence which is due from a sober man under the same circumstances. Men must be content, especially when they are trespassers, to enjoy the pleasures of intoxication cum fiericulis. When they' make them — 513 — selves drunk, and in that helpless condition wander upon the premises of sober men and sustain an injury, they will not be heard to plead their intoxication as an answer to the charge of negligence.” Beach on Contributory Negligence, 2nd ed., 391. This is not a case where the plaintiff’s negligence has remotely contributed to the cause of the accident, but it is one in which he has, as a drunken trespasser on the railroad track of the defendant, directly contributed to produce the injury complained of. Nor is it a case which admits of any doubt on our part as to the comparative degrees of negligence of the respective parties to this appeal, and we have no hesitation in saying that the plaintiff’s negligence as shown by the evidence was the sole cause contributing to the injury he has sustained, and there is nothing in the record of this appeal which tends to show that the defendant failed to use reasonable care to avoid the consequences of the accident or that it could, by the exercise of reasonable care have avoided the injury complained of. This Court has said in the case of the Md. Central R. R. Co. v. Neubeur, 62 Md. 398, Alvey, C. J., delivering the opinion of the Court, that “ The general principle is, that where both parties by their negligence directly contribute to the production of the accident, neither has a right to recover of the other for injuries sustained thereby. But there are exceptions to this general rule; and in cases like the present, the exception is, that if the defendant, or'those acting for it, had become aware of the perilous situation of the plaintiff, though that peril had been incurred by the negligent or even reckless conduct of the plaintiff, yet the defendant or its agents would be bound to use all reasonable diligence to avoid the accident. But in order that this qualification of or exception to the general rule may be successfully invoked by the plaintiff, he must show knowledge on the part of the defendant or its agents of the peril in which he, the plaintiff, was placed, and that there was — 514 — time after such knowledge, within which to make the effort to save him from the impending danger.” (Decided January 5th, 1897). We think it very clear, upon authority and upon reason, that any one who undertakes to use the right of way of a railroad, either as a convenient footway for himself or for any business disconnected with the railroad, he is a wrongdoer and a trespasser, who is to be regarded as having a full understanding of its insecurity and as accepting the risks of all its dangers. There yet remains for our consideration a question earnestly argued by the plaintiff’s able counsel at the hearing in this Court, that it was a duty incumbent upon the appellee company under all the circumstances of the case to give some account of the injury sustained by the plaintiff and not to refuse such information. But this contention is, we think, without authority to support it. If the plaintiff believed he could advance his cause or multiply his chances of success by using the employees of the defendant as witnesses testifying in his own behalf, he had the unquestionable privilege of requiring their attendance and offering them as witnesses in support of his action. But no just criticism can be applied to the defendant, because it failed to call .any witnesses in its own behalf, and thus unnecessarily have prolonged the trial of the case. The plaintiff having failed to make out a case, the Court very properly granted the prayer of the defendant, to which we have failed to- discSver any objection. For the reasons assigned the judgment must be affirmed. Judgment affirmed with costs.