Baltimore & Ohio Railroad v. County Commissioners

Burke, J., delivered the opinion of the Court. This is the second appeal in this case. The first case is reported in 111 Md. 115 . As the record now before us shows that the pleadings are the same and that the plaintiff offered substantially the same evidence to support its case as it did at the former trial, it is unnecessary again to notice the pleadings or to discuss at any great length the plaintiff’s evidence.

The opinion in the former case, in which the facts relied on by the plaintiff are set out by Judge Briscoe, dispenses with the necessity of re-stating them. We need only say that the evidence in the present record tends to support the declaration, and, therefore, under the principles announced in the first appeal the plaintiff would be entitled to recover, unless there he found in this record some new facts to take the case out of the principle of the former decision. The appellant insists that this record does disclose such facts, and that the. legal effect of the new evidence is to bar the plaintiff’s right to maintain the suit. The record presents for review eight hills of exceptions.

Six relate to the ruling of the trial Court on questions of evidence; the seventh to the action of the Court in sustaining the plaintiff’s special exceptions to the appellant’s eleventh prayer; and the eighth to the action of the Court upon ⁴¹⁰ certain prayers submitted by tbe parties at tbe conclusion of the whole case. The first and sixth exceptions are abandoned. There was no error in the rulings on the second and third exceptions. In these the Court allowed the plaintiff to prove by James E. Hobbs, the condition of the bridge on the Howard County side just before the railroad began its improvements, and the condition existing at .the approach to that bridge after the railroad had finished its work.

This evidence bore directly upon one of the material issues raised by the pleadings, to wit, the unsafe condition at that point and who created it, and was properly admitted. The fourth exception was taken to the action of the Court in permitting the plaintiff to prove that it had paid the judgment recovered against it because of the death of Doctor Hill. The declaration alleged that the plaintiff had paid this judgment, and we see no possible, reason why it should not have been permitted to prove that fact. In cases of this character it is always competent to prove the earning capacity of the deceased, as reflecting upon the question of damages, and the= amount actually earned is always evidence.

There was, therefore, no error in the ruling on the fifth exception permitting Mrs. Hill to be examined as to her husband’s income from his practice. This brings us to the rulings on the prayers wherein the real questions in the case arise. The plaintiff offered four prayers. The Court granted its first and second prayers, rejected its third and granted its fourth prayer as modified.

The defendant offered twenty-eight prayers. The Court refused its first, second, third, fourth, seventh, eighth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh and twenty-eighth prayers. The Court modified .and granted as modified the defendant’s fifth, sixth, seventh, ninth and twenty-first prayers, and granted as offered the seventeenth, eighteenth, nineteenth and twentieth prayers. The legal propositions' upon which the appel ⁴¹¹ lant relies for a reversal of the judgment are really presented in its first, second, third, fourth, tenth, eleventh, twenty-second and twenty-seventh prayers.

The jury were instructed hy the plaintiff’s first prayer that if they found that the location of the public highway in Howard County as it approaches the County bridge, mentioned in the evidence, was altered by the defendant in mak ■ ing the alterations and improvements to its road bed mentioned in the evidence, and that such change in the location of said highway rendered the approach to said bridge unsafe and dangerous for travel, and should further find that a certain Alexander Scott Hill while approaching said bridge in 1906 and using due care on his part was killed by reason of said unsafe condition of the approach to said bridge, and that the widow of the said Alexander Scott Hill brought suit in the name of the State of Maryland against the County Commissioners for damages suffered by her by the death of the said Alexander Scott Hill, and recovered judgment, and that said judgment had been paid by the plaintiff, then the plaintiff was entitled to recover. By its second prayer the jury were told that if they found that the public highway mentioned in the evidence as it approached the bridge over the Patapsco river, at Ilehester, in Howard County, was reasonably safe to all persons travelling thereon while using due care before the defendant re-located its road, and should further find that the defendant in making the changes and relocation of its tracks and railroad bed at Hchester, as testified to by the witnesses, caused said highway to be so filled in with earth and stone as to make the approach to said bridge no longer reasonably safe for all persons travelling on said highway while using due care, and should find that the defendant negligently permitted the approach to said bridge on said highway to be unsale and unguarded and unprotected, and should find that by reason of this unsafe, unguarded and unprotected condition a certain Alexander Scott Hill, while traveling on said highway and using due care, was killed as ⁴¹² testified to in the evidence, and should further find that his widow a certain Agnes Hill brought suit against the plaintiff in the name of the State of Maryland for her use, and recovered a judgment against the plaintiff for damages suffered and sustained by her, by reason of the death of her husband, and should further find that said judgment had been satisfied and paid by the plaintiff, then the plaintiff was entitled to recover, and the verdict of the jury must be for it, although the jury might find that the place where said accident occurred was outside of the travel portion of the County road as it existed prior to the alterations thereof and made therein by the defendant. The plaintiff’s fourth prayer is upon the measure of damages. By this prayer the Court limited the amount of recovery to such damages as were sustained by Mrs. Hill .as the direct consequence of the death of her husband, not exceeding however the amount .paid by the plaintiff on account of the judgment against it offered in evidence and interest on such judgment to the date of payment.

This being a suit for indemnity, and the defendant not having been notified of the suit in which the judgment was recovered and requested to come in and defend, and not having participated in that suit, the limitation placed by the Court upon the extent of recovery was proper, The prayer was not seriously objected to by the appellant, nor do we see any reason why upon the facts it should not have been granted. It would certainly not have been proper to have permitted the plaintiff to have profited by the death of Doctor Hill. The plaintiff’s first and second prayers are identical with those approved in the former case, and were properly granted, unless the new evidence, to which we will presently allude, leads to a different conclusion of law. The defendant by its first, second, third and fourth prayers sought to withdraw the case from the jury, and in their support relies upon the additional evidence found in this record, which it is claimed differentiates this from the for ⁴¹³ mer case and makes it the duty of the Court to declare as a matter of law that the plaintiff cannot recover.

The defendant completed its work at Hchester in 1903, and according to the evidence of the plaintiff created an unsafe and dangerous condition at the approach to the bridge across the Patapsco river in consequence of which Doctor Hill lost his life on the 22nd of January, 1906. Its evidence tended to prove that the approach to this bridge at the place of the accident was safe before the defendant began its work, and that by reason of certain changes made by it at that point it rendered the place dangerous and that it left it in an unsafe and dangerous condition. The new evidence introduced by the defendant tended to show that the plaintiff first created the dangerous place where Doctor Hill was killed, and that the changes made by the railroad company but slightly increased the existing danger. The jury was properly instructed as to the legal effect of this evidence, the truth of which was denied by the plaintiff, by the ninth prayer granted on behalf of the defendant.

That prayer told the jury that they could not find for the plaintiff, unless they found that the Baltimore and Ohio Railroad Company or its servants or agents in making the changes in the approach to the county bridge in question created a condition dangerous to the public travel to those using due care and caution, and should further find that the accident to Doctor Hill was caused by such dangerous condition so created, and that the burden was upon the plaintiff to show by a preponderance of evidence that the defendant or its agents or servants created such a dangerous condition at the approach to said county bridge, and that such dangerous condition so created (if the jury found the same) caused the death of Doctor Hill. This prayer gave the defendant all the benefit on this point to which it was entitled, if the jury found its testimony to be true. The other additional evidence is that during the period from 3903, the date when the railroad completed its improve ⁴¹⁴ ments, to Doctor Hill’s death, in January, 1906, the plaintiff, had actual knowledge of the dangerous condition of the road at the place where the accident occurred and failed to repair it. This evidence is uncontradicted, and the proposition asserted by the appellant is that this actual hnowledge and failure to discharge its duty of repairing the highway, constitute the plaintiff a joint tort feasor with the defendant with respect to the death of Doctor Hill, and, therefore, there can be no recovery in this case.

This is really the only substantial question to be decided, and the briefs of the learned counsel give evidence of much labor and diligent search and examination of the cases bearing upon the question. But we cannot give our assent to the contention of the appellant. In our opinion, the facts do not bring the case within the rule which denies indemnity or contribution among tort feasors. Actual knowledge and failure of duty are not sufficient to invoke the application of the rule.

There must be joint participation in the tort and the parties must be in equal degree guilty in a case of this nature. The general rule is that wherever the wrongful act of one person results in liability being imposed on another, the latter may have indemnity from the person actually guilty of the wrong. Pearson v. Skelton, 1 M. & W. 504; Wooley v. Batte, 2 C. & P. 419; Baily v. Bussing, 22 Conn. 455 . This rule is. however, subject to an important qualification or exception, viz, that as between actual tort feasors the law will not enforce contribution or indemnity.

This doctrine was first, formulated in Merryweather v. Nixan, 8 T. R. 186, where contribution was denied where it appeared that both parties actually participated in an act of conversion. The general principle is that which allows contribution, and the doctrine of Merryweather v. Nixan, supra, -is an exception to the 'rule, and is limited to cases where the party seeking contribution or indemnity is in pari delicto with the other. The Courts do not favor the extension ■ of this rule, and have shown a decided disposition to confine the exception to cases clearly ⁴¹⁵ falling within it. Lord Herschell, in Palmer v. Wick, etc. (1894), A. C. 318, referred to Merryweather v .

Nixan, and said: “It is now too late to question that decision in this country ; hut when I am asked to hold it to he a part of the law of Scotland, I am hound to say that it does not appear to me to he founded on any principle of justice or equity, or even a public policy which justifies its application to other countries.” And in Betts v. Gibbins, 2 Ad. and Els. 57, Denman, C. J., said: “The case of Merryweather v. Nixan, 8 T. R. 186, seems to me to he strained beyond what the decision will hear.” The cases where municipal corporations have sued the primary wrongdoer and have recovered may he found in the text hooks and reported cases in great numbers. We have found no case, nor have we been referred to any, in which the right of recovery has been denied under the exceptional rule invoked by the appellant,