Baltimore & Ohio Railroad v. Stumpf

Pearce, J., delivered the opinion of the Court. At the trial of this case two exceptions were taken by the defendant to the admission of evidence, but these were abandoned at the argument in this Court, and the only remaining exception is to the ruling on the prayers. On April 17th, 1901, the plaintiff was driving a grocery wagon drawn by a quiet horse,- on Bayard street in the city of Baltimore, at a point where the tracks of the Baltimore and Ohio R. R. Co. cross said street at grade, and where safety gates are maintained by the Railroad Co. as required by sec. 791 of the city charter. There are four tracks at that point, and the plaintiff’s view of trains approaching from the west was obstructed for about six hundred feet from the crossing by a row of coal cars standing upon one of these tracks.

He testified that as he drew near the crossing he saw the safety gates were open, but he did not see the watchman ; that he looked four times both ways, and saw no train or engine approaching, nor any smoke or other sign of an engine ; that he listened and heard no bell nor whistle nor any sound of any approaching train, and kept on till he was on the crossing; that while crossing the second track, he was struck by an express train coming from Washington which he could not see or hear until just before it struck him, destroying his wagon and injuring him, for which the jury awarded him $1,800. The plaintiff offered four prayers all of which were granted, ⁸⁹ and the defendant offered seven, of which the second, third and fourth were granted, and all the others were refused. The plaintiff’s first and second prayers have been repeatedly sanctioned by this Court where the case is allowed to go to the jury, and need not be again considered. But it was very earnestly argued that there was error in granting the plaintiff’s or.e and a-half, and fourth prayers, and refusing the defendant’s first, fifth, sixth and seventh prayers.

By the plaintiff’s first prayer, and by 'defendant’s second, third and fourth prayers, the finding of the two essential elements of recovery in any case of this character, namely, the negligence of defendant directly causing the injuries sustained, and the absence of negligence on the part of the, plaintiff directly contributing thereto, was fully and fairly submitted to the jury. The plaintiff’s one and a-half prayer told the jury that if they found the crossing in question was a grade crossing, then under the section of the charter offered in evidence, it was defendant’s duty to maintain a safety gate at that point and to keep the same closed on the approach of every train or locomotive until the same has fully passed, and if they found said gate was maintained, but was open and not closed on April 17th, 1901, on the approach of a train and locomotive, and that plaintiff was struck and injured thereby while crossing said track, and that if said gate had been closed on the approach, and during the passage of said train, the accident could have been avoided, then there was a want of ordinary care on the part of the defendant as mentioned in the plaintiff’s first prayer. The defendant objects to this prayer, first, that it excludes the question of contributory negligence, and second, that it ignores the causal connection between the violation of sec. 791 and the happening of the accident. The first objection might be valid if the prayer went to the right of recovery, but it does not so conclude.

It merely declares that certain facts, if found by the jury, constitute want of ordinary care, and identifies that want of ordinary care, as the same which must have caused the injury complained of, without any contribu ⁹⁰ tion'thereto from any want of ordinary care on the part of the plaintiff. It cannot be questioned that the violation of such a requirement is negligence, though not causing injury; and although the jury might find all the facts under that instruction, which the Court declared would establish want of ordinary care on the part of the defendant, yet they could not either under that instruction alone, or in connection with the first prayer, to which it referred, find for the plaintiff, unless they also found he. was not guilty of contributory negligence. Nor does it ignore the causal connection .between the violation of sec. 791 and the.happening of the accident. The criticism to that effect, is a mere verbal criticism upon which grammarians might differ, but to practical men, not concerned about nice discrimination in words, this expression could not be understood otherwise than as meaning that the accident would not have happened, and would not suggest any question of supervening negligence as argued, by defendant’s counsel.

This prayer is a nearly literal reproduction of the plaintiff’s second prayer in McDonnell's case, 43 Md. 537 , and in approving it Judge Grason said : “The defendant was certainly guilty of negligence in so running its cars, if .the jury believe from the evidence that the accident could have been avoided if the car had not been running at a greater speed than was allowable under the ordinance.” And these words were used in reply to the exact argument made by counsel in the present case as to supervening negligence. We find no error in granting this prayer, which we think is quite within the ruling in Stebbin's case, 62 Md. 517. The plaintiff’s fourth prayer, as to the burden of proving contributory negligence, is the same approved in Hogeland's case, 66 Md. 162 , and there said to have been repeatedly sanctioned. A late and interesting consideration of this question is found in Tucker v. State, use of Johnson, 89 Md. 471 , where death resulted from a pistol shot fired in alleged necessary defense of defendant’s servant.

The Court said on page 480: .“It has been held over and over again in this State that .if a suit is brought under this statute for the negligence of the de ⁹¹ fendant, the burden is on the plaintiff to prove the negligence, yet if the plaintiff’s testimony makes out a prima facie case of negligence, and does not disclose want of care on the part of the deceased, the burden is on the defendant to establish contributory negligence, if that is relied on. Freeh's case, 39 Md. 574 ; Hauer's case, 60 Md. 462 ; Steever's case, 70 Md. 75 ; and many others that might be cited. So, although by the terms of the statute, the plaintiff in such cases can only recover by proving that the death of the person was caused by the negligence or default of the defendant, the defendant has the burden cast on him to prove that the proximate cause of the injury was the negligence of the deceased, and that too, notwithstanding the plaintiff is required to prove, as part of his case, that the negligence of the deceased did not directly contribute to the injury. The latter may be satisfied by the presumption of due care and the known and ordinary disposition of men to guard themselves against danger, when the plaintiff’s testimony as to the accident does not show affirmatively that the deceased did directly contribute to the injury.” In opposition to this clear and logical statement of the law upon this point, the defendant’s counsel in his brief says: “It is the duty of the plaintiff to show how the accident happened, as proof that it was caused by the negligence of defendant.

In doing this he must necessarily negative the other possible explanations. The theory of pure accident, or the theory of plaintiff’s negligence, original or contributory, are open as possible causes. He must show negligence of defendant as direct cause, and in doing so must negative negligence of the plaintiff.” To sustain this argument he cites this passage from Balt. Traction Co. v. Helms, 84 Md. 525 : “By the well-settled law applicable to the class of cases to which this belongs, it is not enough for the plaintiff to prove the negligence of the defendant, and the injury which followed, but he is bound also to establish by satisfactory proof, before he can recover, that he was himself free from negligence and exercised ordinary care to avoid the consequences of defendant’s negligence.” How ⁹² ever that language might have been regarded, if it stood apart from any qualifying language, and if that case had been the first in this Court dealing with this rule, it is impossible to suppose that the learned and careful Judge who delivered that opinion, intended to overrule, without even mentioning, the various cases-in which it had been held that the burden of proof in this regard is on the defendant; and it is perfectly apparent from the very next sentence in that opinion, that the defendant’s counsel in this case has misconceived the meaning of the language cited, for the Court goes on to say, “ The right to recover depends upon two distinct propositions of fact; first, the negligence of defendant, and secondly, the exercise of due and ordinary care by the plaintiff, and if he fail to prove negligence on the part of the defendant, or if it appears from his own evidence that he was guilty of 7iegligence directly contributiTig to the injury, he cannot recover.” In the face of all the authorities in this State, we cannot perceive how the correctness of this prayer can be seriously questioned.

The defendant’s first prayer is an attempt to impose by ingenious indirection upon the plaintiff, the burden of proving contributory negligence, and is wholly irreconcilable with plaintiff’s fourth prayer. The first three lines of defendant’s first prayer assert an admitted proposition, that the negligence of defendant causing the injury must be a legitimate deduction or inference from established facts, and not a mere speculation or conjecture, which is never the equivalent of proof. But the prayer then proceeds to assert that the plaintiff must convince the jury by evidence that it is more likely that there was, than that there was not, contributory negligence on plaintiff’s part; thus practically reversing the established rule as to the burden of proof upon this point, and permitting contributory negligence to be founded upon speculation or conjecture, while denying resort to this means for establishing defendant’s negligence. This is not only