Baltimore & Ohio Railroad v. State

Miller, J., delivered the opinion of the Court. Charles Woodward, a conductor of a freight train, had his leg crushed by a collision. The accident occurred on the appellant’s road, at a point about one mile and a-half east of the Point of Rocks, and about four o’clock on the night of the 24th of September, 1869. His train was the second in a convoy of four going west, and was run into by the third and following train.

The collision was slight, not displacing any of the cars from the track, and but little delay occurred in the movement of the trains. As soon as practicable, after the accident, he was placed on the tender of the nearest engine and carried to the Point of Rocks, accompanied and attended by Stoddard, the con ²⁸⁷ ductor of another train, and his friend, who stopped with him at that station. As soon as he arrived there, the company's agent was aroused, his leg hound up with twine to stop the bleeding, a mattress procured, on which he was taken to a hotel, and stimulants administered to him. A messenger was immediately dispatched for the nearest physician, who came soon after, took off the twine, put on what is called a field tourniquet, bandaged the leg, and placed a hoard under it to keep it in position.

At this time he had hied freely, and his pulse was feeble, hut he subsequently rallied, and tbe physician stated he was in a fair way to recover, when be was put upon the next eastern bound passenger train to be taken to Frederick City, a distance of thirteen and a-half miles, where bis relations and friends lived. This train arrived at the Point of Rocks sometime after seven o’clock of the same morning. He was placed in the baggage car, and the same party who. had remained with him attended him on the transit to Frederick, where he arrived in about two hours. On his arrival he was in a dying condition from hemorrhage which occurred during the passage, and died shortly thereafter.

This brief statement of the undisputed facts attending and following the accident, suffices for an understanding of the two distinct theories upon which the case appears to have been tried in the Circuit Court. These are: ' 1st. That there was such negligence on the part of the company as to make them responsible, upon the assumption that the injury received by the collision was fatal and the immediate cause of the death. 2nd. Assuming the injury was not in its nature fatal, and that the proximate cause of the death was the subsequent hemorrhage occuring during the transportation to Frederick, still the company is responsible, if such hemorrhage occurred by reason of the gross neglect of their agents or employes in charge, of him during this transportation. v ²⁸⁸ No embarrassing question arises as to the law governing the first ground upon which a recovery is sought.

At the time of the collision the deceased was an employé of the company and in discharge of his duty as such. What' is essential to make the employer responsible in such cases has been settled by the decisions of this Court. O’ Connell’s Case, 20 Md., 212 ; Wonder’s Case, 32 Md., 411 . The whole difficulty grows out of what occurred subsequently to the collision.

What duty and obligation does the law cast upon the company as to the care and treatment of a party thus injured? It is contended that the rule in Price’s Case, 29 Md., 420 , answers this question, and extends not only to the taking of the injured man to the Point of Rocks, and putting him in the care of a physician there, but also to the carrying of him to Frederick and placing him in charge of his friends in that city. The case of Price was that of a stranger to the company, who while crossing or on the track, near a station, was struck by the engine of a passing passenger train going at rapid speed, and carried upon the pilot for some distance before the train could be stopped. When found he was taken .from the pilot apparently dead, though showing no external wound to justify the conclusion that life was in fact extinct.

Without notice to his family or to any one who would take an interest in him, or sending for a-physician to ascertain his condition, he was taken by those in charge of the train into a warehouse at the station, (a place used by the company to deposit old barrels and other 'rubbish,) and there laid upon a plank across some barrels and locked up alone all night. The next morning it was found he had, during the night, revived from his stunned condition, and moved some paces from the sj>ot where he had been laid, and that he had died from hemorrhage of the arteries .of his right leg which was crushed at and above the knee. It had been proposed to place him in the company's telegraph office which was a comfort ²⁸⁹ able building, but tlio operator objected and directed him to be taken into this warehouse. In that state of case, we said that when the injured man was found upon the pilot of the defendant’s engine in a helpless and insensible condition, “it, at once, became the duty of the agents in charge of the train to remove him, and to do it with a proper regard to his safety and the laws of humanity.

And if in removing aiid locking up the unfortunate man, though apparently dead, negligence was committed whereby the death was caused, there is no principle of reason or justice upon which the defendant can be exonerated from liability. To contend that the agents were not acting in the course of their employment in so removing and disposing of the party, is to contend that the duty of the defendant- extended no further than to have cast off by the wayside the helpless and apparently dead man, without taking care to ascertain whether lie was dead or alive, or if alive whether his life could be saved by reasonable assistance timely rendered. For such a rule of restricted responsibility no authority has been produced, and we apprehend none can be found.” How we are of opinion that the rule of duty and responsibility thus laid down does apply to the present case, but that it extends only to the treatment of the deceased from the time of the accident until he reached the Point of Rocks, and what was there immediately done with and for him. But looking to the undisputed evidence in the record, we find the very opposite of what was done with Price, was done here.

Woodward was not cast off by the wayside, at the place of the accident, and there left alone to bleed to death, nor thrown upon the platform of the station and there left to seek relief by himself as best he could. On the contrary, he was carried as speedily and safely as the circumstances would permit, to the nearest station, a place where it was most likely assistance could be most readily obtained, and when the station was reached the company’s agents ²⁹⁰ took him in charge, did everything for his comfort they reasonably could,'and used every precaution to sto'p the bleeding of his wounds and to save his life, that would naturally occur to unprofessional men of common information and experience. In the words of one of the witnesses, “we did the best we could to save him.” They also sent immediately for a physician who arrived in a short time and took charge of him. Up to this time it is clear that everything that a “proper regard for his safety, and the laws of humanity,” required was done in his behalf, and here, in our opinion, the company’s duty and responsibility under the rule in Price’s Case ceased.

When he was thus attended to, and placed at a hotel in charge of a physician, no further responsibility under that rule, as to his care and treatment, rested upon the company. If they afterwards incurred any liability on account of negligence while carrying him to Frederick, it must be on other grounds and under a different principle of law. In our judgment, it is quite clear that at the time this transportation commenced, he could not be regarded as an employe of the company. Then, if not before, that relation was either suspended or had wholly ceased.

By one of the company’s rules, prescribing in this particular a lawful condition of his employment, he had no right to claim compensation from the company “when disabled by sickness or other cause,” and any allowance they might make to him in such case was to be “ as a gratuity only.” He, therefore, in relation to this transportation occupied the position of a stranger to the company, in like condition. They were not bound to carry him gratuitously, nor to procure a physician or any one to accompany and attend to him on the way. The law imposes' no obligation on railroad companies or other carriers of passengers, to furnish physicians, nurses, or other attendants for sick or disabled persons who may choose to travel in their conveyances. The duty to carry safely is no greater with respect ²⁹¹ to them than with respect to those who are sound and in good health.

Care and attendance of this character must be provided by the traveller at his own cost and risk. As to the correctness of these propositions there can, we think, be no doubt. But it is argued that whether they were under any obligation to carry him to Frederick or not, ’yet, having undertaken to properly attend to him until he ¡could be delivered to his friends in that city, the company :is liable for the consequences which would have been averted, but for the gross default or neglect of their agents and employes in carrying out that undertaking, upon the principle that if a party undertakes to perform an act in regard to which he was under no duty to do anything, ; and injury or loss results from the grossly negligent or f improper manner in which he performs it, he is liable. We understand this argument to assume (as it must, to be of any avail in the present case) that if the jury find that the company, through some agent having authority to bind them to such an undertaking, undertook not only to carry Woodward from the Point of Rocks to Frederick free of charge, but also to provide an attenddnt to take care of him and carry out the physician’s instructions in regard to his treatment while on the way, then the company is liable if his death was caused by the gross negligence or want of ordinary care on the part of such attendant.

So understood, the argument places the liability upon the law of bailments, and the case of Coggs vs. Bernard and other authorities defining the duties and responsibilities of mandatories are cited in its support. This is certainly the only possible ground on which the company could be made liable, and whether it can be applied to the present cause and action may admit of grave doubt. Certain it is, that this is a question of great importance, and is attended with such difficulty, that no opinion upon it ought to be expressed by this Court unless it is clearly and directly presented for our determination, so that it can ²⁹² be finally settled. But there is not a single exception or ruling’ in this record that thus presents it, and what, we might say about it could be justly treated as mere obiter dicta.

For this reason we deem it our duty to refrain from expressing any opinion upon the subject. Having thus stated our views of the law governing the main features of the case as the record presents it, we must now dispose of the numerous exceptions taken at the trial. As the judgment must be reversed for errors in some of the rulings against the appellant, it is made our duty under a provision of the Local Laws, (2 Code, Art. 11, sec. 41,) to decide the exceptions taken by the appellee as well as those taken by the appellant. In the appellee’s first and second exceptions, the Court refused to allow the plaintiff to ask the witness, Thompson, the engineman of train No. 8, which caused the collision, whether he was ever before suspended by the company on the charge of negligence, and if yea, when? and whether his train ever ran into any other train, and if so, when, and where?

In the appellant’s first, second, and third exceptions,* the same witness was asked by the plaintiff, whether, while in the service of the company, he was present in any accident in which his train caused loss of life, limb, or property, and if yea, when, where, and how often? And having stated he was off duty on one other occasion, he was asked “what for?” and further to state all the accidents in which his train was in any way connected, of which the company had knowledge. The plaintiff proposed to follow this up by showing that in the instances the witness might mention,.there was negligence on his part which was brought to the knowledge of the company prior to the happening of the present accident. The Court allowed these questions to be put and answered.

There may be, as was argued at bar, an inconsistency between these two sets of rulings. But this becomes immaterial in view of the testimony which the witness gave. He ²⁹³ testified in the progress of the cause, that he had heen in the service of the company for very many years, first wiping off engines, then helping to repair them, then as fireman for five or six years, and that he was then promoted to miming an engine, which he commenced to do about twelve years ago, and has ever since been so engaged ; that on one occasion, a long time ago, a fireman fell off his train and was killed, and, with that exception, there was no other accident prior to this, causing loss of life, limb, or property, in which his train was in anyway connected; that on one occasion, also a long time ago, he was suspended for two weeks, because he failed to look at the list of engines put up at Mt. Clare, and this he explained by saying we were then riming irregularly, and it was hard to tell when we were to go out, that he thought he, was not to go on the day he was required and was out of town.

All this testimony went to the jury, and it is clear no injury was done to either party by the rulings in question ; none to the plaintiff, because the questions of her counsel wore fully answered, and none to the company, because the testimony given was altogether in their favor. Errors, if any, in these rulings, are consequently of no importance and furnish no ground of reversal. We have, however, heen urged to decide the question presented by them, that is, whether it is competent in order to show 'that the company did not exercise due care in the employment or retention in their service of careful and skilful employes, to prove specific acts of negligence in one of them brought to their knowledge and his subsequent retention in their employment, or whether proof of general character only is admissible for that purpose? But there was no offer to prove by any other witness in opposition to the