Baltimore & Ohio Railroad v. State ex rel. Trainor

Maulsby, J., delivered the opinion of the Court. Mitch of the law applicable to this case is well settled, and is stated with clearness and precision in Northern Central Railway Co. vs. State, use of Price, 29 Md., 421 , thus, “if the negligence of the defendant was the proximate, and that of the deceased the remote, cause of the injury, the action is maintainable, notwithstanding the deceased may not have been entirely without fault.” Tested by this rule we can perceive no error in the plaintiffs’ first and second prayers which were granted by the Court below. It is objected by the appellant to the first prayer, that it admits that there may have been mutual or concurrent negligence, and that it leaves to the jury to exactly ascertain how much each party contributed, by his negligence, to the production of the injury, in which case it would be impossible to apportion the damages, and that it is therefore obnoxious to the rule announced in Northern Central Railway Co. vs. State, use of Geis, et al., 31 Md., 357 . In that case the rule invoked by the'appellant is stated to be that an action will not lie where the negligence imputable to both parties was concurrent, and co-operated to produce the injury complained of.

There can be no difficulty in distinguishing between negligence of both parties immediately concurring to, and co-operating in, the production of the injury, and the proposition of the prayer that if the killing resulted from the want of ordinary care of the defendant, and not from tiro want of ordinary care of the deceased, directly contributing to the injury, the action lies. The second prayer contains, substantially, the same legal proposition with the first, and the appellant’s objection is substantially the same. It is argued that if the deceased walked on the track, and his walking on the track was want of ordinary care, and the accident would not have happened if he had not walked on the track, then such walking was the proximate cause of the accident, and the plaintiff cannot recover. This argument does not justly apply the rule in 29 Md., 421 .

By “proxi ⁵⁵⁴ mate cause ” is intended an act which directly produced, or concurred directly in producing, the injury. By “remote cause ” is intended that which may have happened, and yet no injury have occurred, notwithstanding that no injury could have occurred, if it had not happened. No man would ever have been killed on a railway, if he had never gone on or near the track. But if a man does, imprudently and incautiously, go on a rail road track, and is killed or injured by a train of cars, the company is responsible, unless it has used reasonable care and caution to avert it, provided the circumstances were not such when the party went on the track as to threaten direct injury, and provided that being on the track ho did nothing, positive or negative, to contribute to the immediate injury.

Any attempt to make plainer the rule laid down in the case referred to, than it is made by the language of the Judge who delivered the opinion, is more likely to obscure than to illustrate it. Nor can we appreciate the force of the appellant’s objection to the plaintiff’s third prayer. It is, that instead of allowing the jury, in estimating damages, to consider the probability of life of the widow of deceased, it ought to have limited them to a consideration of the probable continuation of her widowhood, and that they should have been required to measure the period when, in their opinion, she would marry again, "and allow damages to that period only. Such a contingency this Court cannot recognize as a fit element to enter into a verdict in such a case.

We think that the prayers of the appellee were properly granted. The first, second and sixth prayers of the appellant are based on the hypothesis that the deceased was an employee of the appellant at the time of the injury which resulted in his -death. The propositions contained in these prayers could arise only on the idea that he was in the course of discharging the duties of his employment when the injury occurred. The proof on both sides is that he was not, at the time of the injury, so occupied, but that his duties to ⁵⁵⁵ his employer having been discharged, he was on his way to his home.

His employment was as a spiker, and his duty was to go over the track twice a day from the four mile house to the nine mile stone, to see that it was in order. At six o’clock in the evening his duty ended, to be resumed the next morning, unless discharged in the meantime. When the injury occurred, he was not on the track between the four mile house and the nine mile stone, but had finished his day’s work, laid aside his tools, and was proceeding along, or on the track of, the Washington Branch road, towards his home on the opposite side of the Pafapsco river. This being the undisputed evidence on this subject, it is unnecessary that we shall consider these prayers further than to say there is no proof to sustain them, and therefore they are abstractions in this case, and for this reason were properly rejected.

The third and seventh prayers of appellant present substantially the same question, that if the deceased was at the entrance of the viaduct, in the language of the third, or at or near the viaduct with purpose to walk over the same, or was on the rail road track near said viaduct, and walking thereon, and not at a public crossing of the same, in the language of the seventh, when