Baltimore & Ohio Railroad v. Mulligan

Robinson, J., delivered the opinion of the Court. The question of contributory negligence has been considered so often by the Courts, that one might reasonably "suppose the law in regard to it, ought by this time, to be pretty well settled; and yet it seems, that in this State, the question is still open for discussion. The plaintiff is here claiming damages for a cow, killed on the railroad track of the defendant, and the latter con ⁴⁹¹ tends, that if the owner permitted or suffered the cow to stray upon the track of the railroad, such negligence on his part, constitutes a bar to the action. On the other hand, it is insisted, that although the cow may have been upon the road wrongfully, yet the plaintiff is entitled to recover, if the jury should find that the defendant might, by the exercise of ordinary care, have avoided the injury.

So the broad question is presented, whether a railroad company is hound to exercise ordinary care, in order to avoid injury to cattle or other stock found trespassing upon its road? It seems to us there ought not to be any difficulty in deciding this question, and yet it must he admitted that the decisions, in this country at least, are somewhat conflicting. We think, however, the best considered cases, both in England and here, hold the law to he, that mere negligence or want of ordinary care on the part of the plaintiff, will not preclude his right to recover, provided the defendant might, by the exercise of ordinary care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff. So early as Butterfield vs. Forrester, 11 East, 60, Lord Ellenborough, C. J., said: “ One person being in fault will not dispense with another’s using ordinary care for himself.” And then in Davies vs. Mann, 5 Mees. & Wels., 546, Lord Abinger said: “As the defendant might, by proper care, have avoided injuring the animal and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.” And then again, in Mayor, &c. of Colchester vs. Brooke, 7 Ad. & Ell., (N. S.,) 877, Lord Denman said: “As a general rule of law, every one in the conduct of that which may he harmful to others, if misconducted, is hound to the use of due care and skill, and the wrong-doer is not without the pale of the law for this purpose.” ⁴⁹² These cases were reviewed, and the question fully considered by the Court of Exchequer Chamber, in Tuff vs. Warman, 94 Eng.

Com. Law Rep., 573, and it was held, that mere negligence or want of ordinary care on the part of the plaintiff, would not disentitle him to recover, if the defendant might, by the exercise of ordinary care and caution, have avoided the neglect or carelessness of the plaintiff. The rule thus laid down has been sanctioned and approved by the highest Courts in several States in this country, and we think it a just and reasonable one. State vs. Railroad, 52 N. H, 528; Kerwhacher vs. Cleveland, Columbus and Cincinnati R. R. Co., 3 Ohio State, 172 ; Evansville, &c., R. R. Co. vs. Hiatt, 17 Indiana, 102; Vicksburg and Jackson R. R. Co. vs. Patton, 31 Mississippi, • — ; Beers vs. Housatonic R. R. Co., 19 Conn., 572 .

It is a duty resting upon every one, so to conduct -himself, and so to use his own property, as not to inflict unnecessary and avoidable injury upon the person and property of another. A railroad company, it is true, is entitled to the exclusive and unmolested use of its road ; and it is the duty of owners to keep cattle within their