Baltimore & Ohio Railroad v. Kean

Yellott, J., delivered the opinion of the Court. This case has been before this Court on a former appeal ; the verdict and judgment in the Circuit Court for ⁴⁰⁰ Frederick County having, on the first trial, been adverse to the plaintiff below. That judgment was reversed and a new trial awarded. The result of a second trial was a verdict in favor of the plaintiff and from the judgment then rendered this appeal has been taken by the defendant.

The action was brought for the recovery of damages sustained hy the plaintiff who was injured by a train of cars belonging to the defendant and controlled by its agents. There was evidence adduced by both parties in' relation to the question of negligence. When the testimony was closed the plaintiff offered three and the defendant twelve prayers for instructions. The Court granted the plaintiff’s prayers and also all the prayers offered hy the defendant except the sixth, seventh and eighth, which were rejected.

To the rejection of these three prayers and to the granting of the plaintiff’s prayers, the defendant has excepted. The questions relating to negligence, which have been presented by the plaintiff’s first and second prayers have .already been determined hy this Court on the former appeal. In the opinion reported in 61 Md., 164 , we find a summary of all that the Courts have said on the subject in the numerous cases of this nature which have been under adjudication. The governing principle established by the Courts may now be clearly and concisely expressed in á very few words.

If both parties have been negligent, but want of due care and caution on the part of the plaintiff was the direct cause of the injury, or in other words, if the injury could not have been sustained if the plaintiff had not been careless arid neglectful in providing for his safety, there can he no recovery in the action. But if, on the other hand, it is apparent from the evidence that the plaintiff, although negligent, would have suffered no injury had proper care and caution been observed by the defendant, the right of action is maintainable, and the defendant ⁴⁰¹ must be held liable for the damages ascertained by the proof in the cause. The rule in question has been enunciated with great clearness and precision in Tuff vs. Warman, 5 C. B. N. S., 585, in which case it was said: “ It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence and want of ordinary care and caution on his part, the misfortune would not have happened. In the first case, the plaintiff would be entitled to recover, in the latter not; as, but for his own fault, the misfortune would not have happened.

Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover, unless it was such, that, but for that negligence or want of ordinary care and caution, the misfortune could not have happened; nor, if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff.” The first and second prayers of the plaintiff were evidently prepared with strict reference to these principles, and the Court below committed no error in granting the instructions thus invoked. Nor is there the slightest objection apparent from the phraseology of the plaintiff’s third prayer. It enunciates a rule in relation to the measure of damages which has been sanctioned by the Courts in all such cases and it was, therefore, properly granted. The sixth, seventh and eighth prayers of the defendant ask the Court to say that there is no evidence in the cause legally sufficient to show a want of reasonable care and diligence on the part of the agents of the defendant in ⁴⁰² charge of its train of cars* after the discovery of the plaintiff on the track.

Now the plaintiff had in evidence, the statements of two experienced men who had been engaged in the business of running trains of cars and who said that ordinary care would, in their opinion, have stopped