Baltimore & Ohio Railroad v. State ex rel. Miller

Stewart, J., delivered the opinion of the court. However the law may be, elsewhere, in regard to the duties of rail road companies in cases, like the present, where damages are claimed for alleged neglect and wrongful conduct, it is settled, in this State, by the decisions of this court in B. & O. R. R. Co. v. Worthington, 21 Md. 275; State v. B. & O. R. R. Co. 24 Md. 84 ; Bannon v. B. & O. R. R. Co. 24 Md. 108 ; and B. & O. R. R. Co. v. Breinig, 25 Md. 378 . There is no feature, in this case, connected with the proposition involved in the first exception, to distinguish it from them, and particularly Breinig’s Case, where the instruction of the court was entirely similar. The doctrine announced is plainly this: that whilst a rail road company, in the lawful pursuit of. its business, employing use ²⁶⁰ ful but dangerous powers, is required to observe a degree of caution and care, proportioned to the increased risk and danger-of inflicting irreparable injury upon others in like lawful pursuit of their avocations, the duty is not imposed upon it of using every possible contrivance that human ingenuity might provide; but regarding the dangerous nature of its employment, and its liability seriously to interfere with the pursuits of others, it should be vigilant in making use of *every reasonable safeguard, which the nature of its business will admit, to avoid unjust interference with others.

The relative rights between it and strangers are different in degree from those between it and passengers, whose claim have a superadded obligation arising from contract and confidence; and the utmost vigilance and care are to be observed in regard to them. The demand of strangers makes it incumbent on it, upon general principles of humanity, to exercise such reasonable vigilance and care towards them as not to be the occasion of doing them an injury by its negligence, which could be avoided by judicious foresight. It is protected by the principle common to it, with others, that if a party receives injury from it by its negligence and want of care, and it can be shown that such party has, by his own want of care, been the occasion of the injury, or by his-negligence, directly contributed to the accident, he can sustain no claim for the damage inflicted upon him, and it is excused. If disaster occur under such circumstances, it is the party’s own misfortune.

The rail road company, in the due discharge of its duty to the public, in running its engines and cars, in the thronged streets of a populous city, where old and young, the active and decrepit, have a right to be passing, is required to use a higher degree of caution than would be necessary, when moving in the open country, where there is not the same imminency of collision with others; whilst it is necessary, with regard to the character of its business, that the cars and engines of a rail road company should move with more speed than ordinary conveyances, every reasonable precaution must be used compatible with the exigencies of its business and commensurate with the risk and hazard that necessarily arise. The rail road company, although using a machinery capable of great and dangerous results, if negligently employed, yet being a great public con ²⁶² venience when exercising its agencies in a proper manner and having the lawful right to travel the road, has the incidental obligation imposed upon it, in the employment of its force, to use correspondent precaution *and vigilance to prevent irreparable injury to others. The instruction of the court below, in the plaintiff’s prayer, in the first bill of exceptions, might mislead the jury as to the extent of the duty incumbent on the defendant by the use of the language “ that the defendant was bound to exercise the utmost care and diligence which it had the means and power to employ, having regard to the business in which it was engaged.” The defendant, in the lawful pursuit of its business, was only obliged to use such reasonable care and diligence as ordinary prudence would suggest and require, having regard to the business in which it was engaged, and its liability to dangerous collision with others, in the passage of its locomotives through the thoroughfare of a city. We perceive no error in the latter clause of the instruction denying the right of the