Baltimore & Ohio Rail Road v. Lamborn

Bartol, 5., delivered tbe opinion of this court. This is an action to recover the value of a horse, belonging to the appellee, killed by the locomotive of the appellant.. At the trial of the cause, the plaintiff, to maintain the issue on his part, proved that some time in the month of September 1855, he was the owner and proprietor of certain land adjoining and contiguous, to the Washington branch of the Baltimore ²⁶⁰ and Ohio Rail Road, at or near the Hanover switch, where the cars of the defendant stop, when necessary, to put off or take up passengers, and that he was also the owner of a horse which, at the time referred to, was standing at or near the point indicated, on the line of the said rail road, though not immediately in the track, and which was run over by the cars of the said .defendant, and so injured as to be entirely lost to the said plaintiff. The defendants, then, for the purpose of maintaining the issue joined on their part, proved that on the occasion of the injury to the horse of the plaintiff, a locomotive, with a train of passenger cars attached, in charge of their agents, was proceeding from Baltimore to Washington, at a rale of speed of about twenty-five miles an hour, that on approaching the switch they gave the usual and ordinary signal, with the whistle; that when within a short distance of said Hanover switch, they observed the horse of the plaintiff, distantsome hundred and fifty yards, standing near the rail road track, and on or near a road which crosses said track; that immediately upon observing the horse, the whistle was sounded to put down the brakes, and the brakes were put down instantly; that the horse immediately took to the track of the rail road, and run some distance in the road, when he was overtaken by the cars and run over; that at the time of the collision, the speed of the cars had been reduced to some ten miles the hour.

It was further proved, that if the agents having charge of the cars, had, at the time of the discovery of the horse, when they were going at the rate of twenty-five miles an hour, reversed the engine, it would have been at the peril of the entire train and passengers, as, in all probability, it would have thrown the cat's from the track. The plaintiff then proved, upon cross-examination, that the point where the horse was first seen, was a point on the rail road which, from the curve in the road, could not be seen at a greater distance than a hundred and fifty yards, and that carts and wagons are frequently passing said rail road during loading and unloading iron ore, to be transported over said rail road; and that it would have been impossible to arrest the ²⁶¹ cars, going at the rate at which they were travelling, when they first discovered the horse, sufficiently to avoid the collision. Whereupon the defendant offered four prayers, which were rejected by the court below, and the verdict and judgment being in favor of the plaintiff the defendant appealed. In all the prayers the principle is involved, that if the horse, when killed, was upon the track of the rail road, through, the •negligence of the plaintiff in not keeping the horse within his close, then, he is not entitled to recover.

It is a principle of the common law, too well settled to require authorities to be adduced in its support, that, in an ordinary case, a plaintiff is not entitled to recover for injuries to which his own fault or negligence directly contributed; but it is contended by the appellee’s counsel, that this case is freed from the operation of that principle, by force of the provisions of the acts of Asembly of 1838, ch. 244, and 1846, ch. 346. The former of these acts was carefully considered, and its construction settled by this court, in the case of The