Baltimore & Ohio Rail Road v. Worthington

Cochran, J., delivered the following opinion, in which Bartol J. concurred: I do not concur with the Chief Justice in the conclusions he has expressed. Negligence, in the ordinary legal sense, imports an absence or want of such care as the law requires should be observed in the performance of any given undertaking, and generally speaking, is a fact, the finding of which is for the jury, although the Court may declare the legal nature and extent of the duties incident to the undertaking, as well as those facts which by inference of law are essential to its performance. The opinion of Best, J., in Crofts vs. Waterhouse, 3 Bing., 314, illustrates very clearly the ground upon which the Court may proceed in such a case, as well as the principle by which its action should be limited and controlled. There the undertaking was to carry passengers by a stage-coach, and the Court, in declaring the duty of the carrier, very properly said that he was bound .by his undertaking to provide a coach and harness of sufficient strength and properly made, steady horses, a skillful driver well acquainted with the road, and with lights by night, and that he would be liable by any default in either of these things, for any damage that might happen.

The rule here stated is unquestionably an appropriate one, in any case where the negligence alleged may be deduced from the absence of any fact, which the law of the. ²⁸⁷ contract presupposes and requires should be shown. There is, however, a large class of cases where the question of negligence is more complex, and where it may be determined from facts and circumstances of a character too uncertain for any legal inference, and consequently, where the finding of the jury should be aided rather than controlled, by instructions from the Court. The jury may be directed as to the degree of care required, and generally as to the law of the contract or undertaking, but negligence in that class of cases, is nevertheless a fact which the jury, when informed as to the lae, may deduce from facts and circumstances lying beyond the province of judicial instruction. If the law laid down by the Court furnishes a test or standard which the jury may apply in passing upon the evidence, and which thereby may enter into and constitute an appreciable element of the fact to be found, the question is a mixed one, and the jury should so find as to give the instructions their proper legal effect.

The question of negligence in this case was considered to be one of that class. The evidence shows that the accident in question occurred while the appellee was being transported upon the appellant’s road, that it was caused by the misplacing of a switch, which the train, moving at the usual speed of twenty-five miles an hour, approached by a curve on a descending grade, and that the switch, as approached, was not visible from the lookout of the engineer at a greater distance than one hundred and fifty yards. The skill and care of the agents in charge of the train, do not appear to have been impeached nor brought in question by any evidence in the case, nor was there any tending to show that the track or machinery was defective in structure, strength or sufficiency, except so far as related to the switch by which the accident was caused. The Court instructed the jury on this evidence, that the injury to the appellee raised a presumption of negligence which imposed on the appellant the burden of showing, that the accident was unavoidable and could not have-been prevented by any degree of care, and further, that it ²⁸⁸ was for the jury to determine from all the evidence in the case, whether there was negligence or want of care, the nature of railroad transportation being considered, and even if they should find that a switchman might have prevented the accident, yet that the appellee could not recover, unless they should find that the failure to employ a switchman was an act of negligence.

There was no question in regard to the degree of care required, for the rejected prayers, as well as the instructions givon by the Court, both assume that the appellant was bound to observe the utmost care and diligence in the structure of its-road and machinery, and management of its trains. The' degree of care was prescribed by the Court, in negative' terms it is true, but it was as exact and certain as it would have been in the affirmative form used by the appellant. The terms “utmost care and diligence,” mean all! the care and diligence possible in the nature of the case,, and it must be assumed, if the accident complained of Ifould not have been prevented by the utmost care and diligence,, that it was, in the language of the Court, one against which “human care and foresight could not guard.” These forms of .expression have been used in many cases as equivalent, and I understand them to have the same legal import and effect. Christie vs. Griggs, 2 Camp., 79.

Ingalls vs. Bills, 9 Met., 1 . 4 Cush., 402 . Stockton vs. Frey, 4 Gill, 406 . But the appellant objected to these instructions, chiefly because the injury to the appellee was declared to-be presumptive evidence of negligence without prescribing any legal measure of proof by which that presumption could be rebutted; and further, because they did not sufficiently instruct the jury, as matter of law, what negligence is, nor what the appellant’s duties and obligations were. It was suggested that the appellant’s prayers were so drawn-as to remedy these defects, and that the Court erred for that reason in rejecting them, but I think the instructions of the Court are not open to the objections made.

Had the case been one in which negligence on the part of the ²⁸⁹ appellant could have been deduced or found from the absence of any fact or circumstance which by inference of law was essential to the performance of its undertaking, these objections might have proved fatal, for, as we have before remarked, a failure to show any particular which the law contemplates as necessary to the performance of the undertaking, would have subjected tbe appellant to liability for any damage that might have occurred. In that case negligence would have been an inference of law with which the jury could have nothing to do, further than to find the facts supporting the inference, although it would have been the duty of the Court, in directing tbe jury, to have stated such facts as the law of the undertaking required should be shown. Tbe objections urged here seem to be founded on principles applicable only to that state of case, for they proceed on the theory that it vras necessary for the Court, in directing the jury, in regard to the degree of care required, to prescribe the measure of proof necessary to establish the fact of negligence, as well as to rebut the' presumption of it, arising from the proof of injury to tbe appellee. There can he no mistake in assuming that principles, which govern in finding negligence when it is purely a question of law, do not apply when it arises as a mixed one of law and fact.

Tbe Court said very properly, that the injury to the appellee as shown by the evidence raised a presumption of negligence, that east on the appellant the burden of proving that the accident was not the result of negligence in any degree. The appellant does not dispute the first part of the proposition that a presumption of negligence was raised by proof of the injury, but, insists that the Court should have prescribed a measure of proof by which that presumption could have been robo tied. We may observe here, that the standard of care required by tbe law of the case was correctly stated by the Court, and’ that, with that legal test, the question of negligence was properly left to the jury upon the er identic of the cause and circumstances oí iho accident. The mined, character of the ²⁹⁰ question was not changed by the presumption arising from the proof of the injury, as it was still for the jury to find, by applying the same legal test to the evidence in the case, whether proper care had been observed.

The relation of the parties to the question was changed, it is true, for by shifting the burden of proof it became the duty of the appellant to show that the accident was such as could not have been prevented by human foresight and care, or stating it in the affirmative form, that the utmost care and diligence had been observed. Assuming, as I thinlc we must do, that the exercise of proper care by the appellant, was to be found from facts and circumstances of a character too uncertain for any inference of law, and from which the jury alone could make the proper deduction, then how was it possible for the Court to determine, as matter of law, the measure of proof required to rebut the presumption of negligence, which fact, by the presumption, rested in evidence, the effect of which the Court had neither means nor power to ascertain.? The measure of rebutting proof in any given case, is usually determined by the legal effect or result of the evidence to be opposed, and in prescribing the measure of such proof as was insisted on here, the Court would have had to-determine the effect of evidence, which, as we have seen, was not within the province of judicial inference. The thing to be done was to satisfy the jury that there had been no want of care, or in other words, that the utmost degree of care-and diligence had -been exercised, and tbe amount of evidence necessary to effect that result was the measure required to exonerate the appellant from liability.

The opinion of the Court in the case of Stokes vs. Saltonstall, as we understand it, establishes no principle inconsistent with the views here expressed. The question was raised there, upon an instruction given by the Court below, that it was incumbent on the defendant, in order to meet the .prima facie case of the plaintiff, to show “that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the busi ²⁹¹ ness in which he was engaged; and that he acted on the occasion with reasonable skill and ivith the utmost prudence and caution,” — “and if the disaster in question was occasioned by the least negligence or want of skill or prudence on his part, then the defendant was liable.” This instruction was held good, and it is said here that it prescribes a measure of proof for rebutting the presumption of negligence. We do not so understand it, for according to our apprehension, it was an instruction that required the defendant to satisfy the jury that there was no negligence, want of skill or prudence on the part of the driver, without regard to any legal measure of proof by which those facts could be established. And in that respect the -instruction is identical with that given by the Court in this case.

Negligence on the part of a carrier will be presumed from the proof of injury to a passenger only in respect to the causes of the injury, and to rebut that presumption, it is necessary for the carrier to show and so explain the cause of the injury as to satisfy the jury that it was unavoidable, and could not have been prevented by human care and foresight. Carpue vs. Lon. & Brigh. Rail. Co., 3 Eng.

R. & C. Cases, 508. I think the Court gave the appropriate instructions for the guidance of the jury in passing upon the evidence in this case. The standard of care required was stated in terms sufficiently comprehensive and accurate to enable the jury to determine whether the appellant’s duties were performed, and consequently to find whether the injury sufferred by the appellee resulted from any default or want of care in the performance of the undertaking to transport him safely. For these reasons I think there was no error in rejecting the prayers of the appellant, and that the judgment should therefore be affirmed.

Bowie, C. J., dissented, and filed the following opinion: This case has been argued with a zeal, ingenuity, ability ²⁹² and research, worthy of the important and delicate questions involved. It presents the nature and extent of the obligar tions assumed by railroad companies as passenger carriers, in their transportation, and the relative duties of the Court and jury in ascertaining and fixing their liability! The appellee sued the appellants for damages for injuries received, by him whilst traveling in the cars from Washington to Baltimore, on the 7th June 1856. At the trial below, the defendants ashed the Court to instruct the juyy as follows: “ That if they believed from, the evidence that the plaintiff was injured while a passenger, in the cars of the defen • dant, from Washington to.Baltimore, on the 7th July 1856, and that said injury was caused by said cars running off the track at a dirt-switch near Elkridge Landing, and that at the time of the happening of such accident, the train of cars in which the plaintiff was, was traveling at a customary speed, and that the defendants and their agents used, and were using, the utmost care and diligence, looking to. their road, machinery and agents, and required for the safe transportation of the plaintiff, and that the accident was not due to any defect in the road or the machinery, or neglect or misconduct of their agents, then the plaintiff was not entitled to recover. “ That if the jury found that the accident was caused by the wrongful act of a party or parties not connected with the defendants in any manner, in misplacing the switch spoken of in the evidence, and that the condition of the rail and switch when so displaced, if the jury shall believe, from the evidence that the accident was attributable thereto, was such as could.not have been anticipated, and when, visible could not have been obviated by the utmost care and diligence on the part of the defendants, or their agents, then the plaintiff was not entitled to recover.” Which the Court rejected, and ex mero motil, gave the following: “That if they found from the evidence that the injury of which the plaintiff complained in this case occurred as ²⁹³ ¡dated by the witnesses, and that the plaintiff was thereby damaged, there was presumptive evidence of negligence ou the part of the defendants, and that it was incumbent on thorn to prove that they were not negligent, in order to discharge them from liability for the injury thus occurring to the plaintiff, and that it was a question of fact for the jury to determine, from all the evidence in the case, whether the injury of which the plaintiff complained arose from any neglect on the part of the defendants or their agents, and that if the jury should find that the injury in question was the result of an accident or act against which human care and foresight could not guard, and was not the result of negligence in any degree on the part of the defendants, then the plaintiff was not entitled to recover. “That in determining whether the accident whereby the plaintiff was injured, if the jury should find such injury, was the result of an accident or .act against which'human care or foresight could or could not guard, the jury were to have regard to the character of railway transportation, and that it was not necessary that the jury should find for the plaintiff, if they found there was no person in charge of the switch spoken of in evidence, and that the presence of such person might have prevented the accident, if the jury should believe from all the circumstances that the want of such switch-tender was not an act of negligence on the part of the defendants.” " The value of the right of trial by jury in civil cases, depends mainly upon the observance of the boundaries between law and fact, and the effective exercise of the right of the Court to instruct the jury upon all questions of law arising upon the facts submitted to them.

The lines of demarcation between questions of law and questions of fact, are often shadowy and almost indefinable. As these fade into each other, the more necessary the exercise of the right of instruction on the part of the Court,, The reports are, full of irreconcilable decisions as to the classification of these questions. ²⁹⁴ Whether negligence or the want of reasonable care is to be determined by the Court or by the jury, is a question which has been much discussed. In Doorman vs. Jenkins, 3 Adol. & Ellis, 256, the judges all concurred in .saying no general rule could he laid down. That in some eases the negligence depended entirely upon the law, and then it was for the Court; in others, it depended on facts or inferences from facts, and then it was for the jury.

This is but equivalent to what we have before affirmed, that where the facts are established, it is the duty of the Court to declare the law arising from them; but where the facts are disputed, or the inference to be drawn from them is questioned, it is the duty of the jury to determine them under instructions of the Court. The Central R. R. Co. vs. Moore, 4 Zabriski, 832, 833. On the other hand, in 1 Eng. Railway Cases, 852, Aldridge vs. Great W. R. Co., 19 Con., 570; and Park vs. O’Brien, 23 Con., 347, it was held, “whether there was negligence, or a want of care of whatever degree, was from its very nature a question of fact, and therefore to be decided by the jury." This Court said in Keech vs. Balt. & Wash.

R. R. Co., 17 Md. Rep., 47 : “These instructions submitted to the jury the question of negligence on the part of the plaintiff, as well as on the part of the defendant, which was a proper subject for'them to pass upon." It does not appear that any question was raised as to the propriety of the submission, or whether what constituted negligence was defined. Whether there be any evidence or not, is a question for the judge; whether it is sufficient evidence, is a question for the jury. To obviate the dangers incident to submitting mixed questions of law and fact, the rule is laid down in the text boohs, that where the question is mixed, “so intimately blended, as not to be easily susceptible of separate decision, they are submitted to the jury, who are first instructed by the judge in the principles and rules of law by which they are to be governed in finding a verdict, and these instruo ²⁹⁵ tions they are bound to follow. 1 Greenlf. Ev., sec. 49, part II., ch. 1.

The corollary of this rule is, that the Court should instruct in such terms as will inform the jury what the law requires to be found upon any such mixed question. Any instruction which is calculated to mislead the jury, is cause of appeal. Clements vs. Smith’s Adm’rs, 9 Gill, 160 . The remarks of Justice Story on the relative obligations of Court and jury, are very apposite: “ It is the duty of the Court to instruct the jury as to the law, and it is the duty of the jury to follow the law as it is laid down by the Court.

This is the right of every citizen, and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be not only that the law itself would be most uncertain, from the different views which different juries might take of it, but in case of error there would be no remedy or redress by the injured party, for the Court would not have any right to review the law as it had been settled by the jury. Indeed it would be almost impracticable to ascertain what the law as settled by the jury actually was. On the contrary, if the Court should err in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular Court may require.” United States vs. Babtiste, 2 Sumner, 243. 1 Greenlf.

Ev., 64 note. The judge is to inform the jury as to the degree of diligence or care or skill, which the law demands of the party, and what duty it devolves on him, and the jury are to find whether that duty has been done. Hunter vs. Caldwell, 11 Jur., 770. Burton vs. Griffith, 11 M. & W., 817.

Facey vs. Hurdom, 3 B. & C., 213. Stewart vs. Cauty, 8 M. & W., 160. Parker vs. Palmer, 4 B. & Ald., 387. Pitt vs. Shew, Ib., 206.

Mount vs. Larkins, 8 Bing., 108. Phillips vs. Irving, 7 M. & Gr., 325. Reece vs. Rigby, 4 B. & Ald., 202. If the propositions established by the preceding authorities arc correct, the defendant exercised a legal right in ²⁹⁶ submitting the instruction which he asked the Court to give the jury in this caso.

The facts enumerated were left to the jury to find upon the evidence in the cause; testimony tending to prove them was offered, and the only remaining inquiry is, was the conclusion of law based on them correct. That is to say, if the defendants, at the time of the accident were traveling at a customary speed, and were using the utmost care and diligence looking to their road, machinery and agents, and required for the safe transportation of the plaintiff, and the accident was not due to any defect in the road or the machinery, or neglect or misconduct of their agents, then the plaintiff was not entitled to recover. The nature and extent oi the responsibility of passenger carriers, is stated accurately and succinctly in Story on Bailments, sec. 601, thus: “It is certain that their undertaking is not an undertaking absolutely to carry safely. They are hound only to due care and diligence in the performance of their duty.

But in what manner are we to measure this due care and diligence ? Is it ordinary care and diligence which will make them liable only for ordinary neglect,' or is it extraordinary care and diligence, which will make them liable for slight neglect ? As they undertake the carriage of human beings whose lives, and limbs and health aré of great importance, as well to the public, as to themselves, the ordinary principles in