Baltimore City Passenger Ry. Co. v. Nugent

McSherry, C. J., delivered the opinion of the Court. This is is an action to recover damages for a personal injury. The facts so far as they need be recited to present the questions of law which are brought up by the second and third bills of exception are few and simple and will be stated in a moment. The ruling complained of in the first bill of exceptions has reference to a question of practice and though arising earliest on the record will be considered and disposed of last because it does not pertain to the merits oí the controversy.

The appellant is a corporation owning and operating a street railway in the city of Baltimore. The motive power used to propel its cars is electricity, which is applied by the overhead trolley system. On the day that the injury complained of happened, the appellee boarded one of the company’s cars, taking a seat on the inside, but afterwards, owing probably to the crowded condition of the car, going to and standing on the rear platform. Shortly thereafter the trolley wire broke some few inches from a brass sleeve which spliced together the ends of the separate wires that, when united, formed the continuous trolley wire.

That part of the broken wire which was above the car and which stretched in the direction that the car was going, was carried on the trolley-pole as the car proceeded ; and as the car moved forward the wire charged with the electric current was paid out over the trolley-wheel, and the severed end fell upon the roof of the car and thence over its rear edge and came in contact with the appellee, who was thrown by the shock, or who, receiving a shock therefrom, jumped to the ground and was injured. The period of time intervening between the breaking of the wire and the injury to. the appellee was only a few seconds. The record fails to show that the car could have been stopped in a shorter space of time than it was, or that the employees in charge of it could have done anything which they omitted to do to. avoid the injury. There was evidence adduced by the appellant tending to prove that the wire broke from a latent ³⁵⁴ defect that no test or inspection could have discovered and that no human foresight could have guarded against That the wire had been subjected to all the tests known to science,- if not before it was sent from the factory where it was made, at least before it was put in place, and that since :it had been in use it had been regularly and carefully inspected.

It was further shown that the most skilled contractors had constructed the line and that the best materials which could be procured had been used. There was also .sufficient evidence before the jury from which they well might have found—if they believed that evidence to be true —that the wire broke from no fault or negligence of the company or its employees; and they might likewise have ■concluded, for the testimony, if credited, warranted the conclusion, that the highest degree of care and caution known ■to science had been used by the company in ¡providing the best materials, appliances and workmanship in the building ■of its tiplley system. The declaration contains a single count. It avers that a certain wire, the property of the defendant, and which it was its duty to keep in repair, was, through the carelessness and negligence of the company and its servants, out of repair,, and in consequence broke and fell upon the plaintiff, who at that time was using due care and caution.

Under this declaration and upon this proof each of the parties presented two prayers for instructions to the jury. 'The Court of Common Pie,as granted the plaintiff’s second prayer, modified his first and as modified granted it; rejected the defendant’s second, modified its first and as modified granted it. To this action of the Court the third bill •of exceptions was taken. The plaintiff’s first prayer needs no discussion. The •objection made to it in the Court below was that it left to the jury a question of law in not defining the degree of care required of the defendant.

No point is suggested in the brief against this prayer, and we think the one raised below is not tenable. It defined the degree of care and diligence ³⁵⁵ exacted of the defendant as the “ highest degree of care and diligence practicable under the circumstances.” This, as we shall see later on, correctly described the extent of the duty owed by the carrier to the plaintiff. The plaintiff’s second prayer should not have been granted. There was a special exception interposed to it in the trial Court upon the ground that there was no evidence to support one of its hypotheses.

This objection ought to have been sustained. The prayer instructed the jury that if they should find from the evidence that the plaintiff whilst a passenger on the defendant’s car and whilst using due care was injured by contact with a broken trolley wire, and that the broken wire was dragged upon the back platform and against the plaintiff by the momentum of the car, then their verdict would have to be for the plaintiff, "unless they shall further find that the defendant’s employees could not by the exercise of reasonable care have prevented the trolley wire from being dragged zip on the platform.” Now, there is not a particle of evidence in the record to support the hypothesis we have put in italics, and it was consequently error to have submitted such an hypothesis to the jury. We may remark, in passing, that the theory of the prayer is directly at variance with the declaration. It does not, it is true, refer to the pleadings and would not therefore on the ground of variance be open to criticism, but it shifts the right to recover from the one alleged in the narr. to a totally different ground.

If the cause of the injury was, as charged in the declaration, the bad condition or disrepair of the wire, and this bad condition or disrepair was really due to the negligence of the defendant, and injury ensued as a consequence, then the cause of action declared on was proved, and it made and could make no possible difference whether the employees in charge of the car could or could not have prevented the wire from being dragged upon the platform after it had in conseqzience of prior negligence, broken and fallen on the car. Even if the employees could not by the utmost care have ³⁵⁶ prevented the wire from being so dragged upon the platform, the right of action would still have been perfect if the efficient cause of the injury was in reality the antecedent imputed negligence of the defendant in permitting the wire to be out of repair. The substantial error of law into which the learned Judge below inadvertently fell was in refusing to grant the defendant’s second prayer. By that prayer the defendant sought an instruction to the effect that if the jury should find that the accident to the plaintiff was caused “solelybya hidden or latent defect, not apparent to the eye in the trolley wire,” and which “ the defendant could not have discovered or detected by any reasonable examination,” and that if the company employed proper and suitable contractors to erect the wire and overhead construction at the place of the accident and if the contractors used suitable and proper material and a proper and skillful method of overhead construction, “ then the defendant has performed its duty to the passenger in this regard and the verdict must be for the defendant, even though the jury further find that the plaintiff without fault on his part, did receive injuries by reason of the breaking and falling of said trolley wire.” A carrier of passengers is not an insurer of their safety.

This is the settled law. Such a carrier is only bound to employ the utmost care and diligence which human foresight can use. Was. Turpk.

Co. v. Case, 80 Md. 45 ; State, use of Coughlan, v. B. & O. R. R. Co., 24 Md. 102 . This is the limit and the measure of the duty which he owes to the passenger. His failure or omission to discharge that duty is an act of negligence and if injury results from that negligence an action will lie. It is apparent, then, that all actions of the kind we are now dealing with, to be maintained, must be founded on negligence of the defendant, both asserted and proved.

If there be no negligence, though there be an injury, no action will lie. Negligence is essentially relative. In the abstract it is a nullity—it does not and it cannot in the nature of things, exist. It is ³⁵⁷ metaphysically impossible to evolve a concept of negligence apart from the facts which give rise to it and independently of some imposed or implied correlative duty.

The duty must be essentially related to the particular circumstances and a variance in the circumstances necessarily begets either a modification of the duty or else extinguishes it altogether. Thus the duty which a railroad company owes to a passenger whom it is carrying on its train, is widely different from the duty it owes to a trespasser on its tracks ; not only because the rights of the two are different, but because the attendant circumstances and facts creating the reciprocal rights, in each instance, are dissimilar. This difference in rights and in duties springs from a divergence in the circumstances out of which they respectively grow. Consequently a condition which would in one case give rise to an inference of negligence, would be wholly insufficient to justify its deduction in the other.

Because this is so, it follows that the conditions under which an injury to a trespasser and to a passenger happens, produce different evidentiary results—in the one case, the injury, if flowing from defective appliances, being in itself on grounds of policy and convenience, prima facie evidence of negligence in respect to the appliances which produced the injury ; whilst in the other instance it—the injury—is simply neutral and indifferent as respects the proof of negligence. Negligence and injury are cause and effect; but negligence is not the only cause of injury. As in all cases where the injury itself is treated as prima facie evidence of negligence this prima facie evidence is rebuttable, it results that the burden of proof to show that the injury arose from some other cause than negligence is cast upon the party against whom th e prima facie evidence has raised the inference of negligence. Prima facie proof of negligence is not conclusive proof that negligence in fact existed.

It furnishes sufficient evidence, if nothing to the contrary be shown. Every injury does not necessarily result from negligence. There are acts of God involving a vis major, and there are ³⁵⁸ accidents, including no elements of negligence because occasioned by no breach of any imposed or implied duty at all. An act of God injures no one.

When an act complained of and alleged to be negligence could not by the exercise of proper diligence have been foreseen and is concurrent in its origin with the resulting injury and as simultaneous therewith as physical cause and effect can be, and there is no antecedent dereliction or