Baltimore & Potomac Rail Road v. State ex rel. Stansbury

Bowie, J., delivered the opinion of the Court, The cause of action in this case is the death of the appellee’s son by collision with the cars of the appellant. The appellee offered evidence tending to prove that his son, a lad about twelve years of age, on the 19th of June, 1816, whilst sitting or lying down with a companion, on the edge of the embankment of the appellant’s railroad, “just at the end of the cross-ties,” watching the cows of his father, was struck by the engine of a train of the appellant, without warning and killed; that no notice was given of the approach of the train by blowing the whistle; that the railroad passes through the land of the appellee, who was engaged in the milk business, and the boy who was killed drove his wagon, and when at home watched the cows grazing in the meadow of his father adjoining the railroad, to keep them off of it, and was so engaged when the accident occurred. It was further proved, that the railroad track at the place of the accident and for the distance of half a mile, was perfectly straight, open and unobstructed in view; that the grade was upward, the hour about three p. m.; the boy was intelligent, and capable of managing a horse and wagon. On the part of the appellant, evidence was offered tending to prove that the train was an express, running at the rate of thirty-five miles per hour; that the engineer was on the look-out, that he blew the whistle at the signal post as they approached the Sulphur Spring Station (near which the accident occurred) and did not see the children until it was too late to stop the train; when he saw them, the one killed was on his hands and knees moving towards the track.

From this synopsis it is apparent the liability of the appellant depends upon the question whether the injury was caused by the want of due care upon the part of the appellant or by the negligence of the son of the appellee? ⁶⁵⁴ The prayers submitted on the part of the appellee maintained substantially the following propositions: 1st. If the death of the boy resulted directly from the want of ordinary care and prudence on the part of the defendant’s agents, and not from the want of care and prudence on the part of the deceased, directly or indirectly, contributing to the misfortune, then the verdict must be for the plaintiff. 2ndly. If the deceased was guilty of the want of such care as ought under all the circumstances of the case to have been expected of him, still, if the agents of the defendant did not keep a reasonable look-out, and did not give the usual and reasonable signals of the train’s approach, and did not exercise ordinary care in the running of the train, by the use of wffiich the accident would not have occurred or might have been avoided, the verdict must be for the plaintiff. The appellant’s prayers virtually affirmed, 1st.

That there was such contributory negligence on the part of the deceased as deprived the appellee of all right of recovery. 2nd. That there -was no legally sufficient evidence to be submitted to the jury that the injury was caused by the negligence or want of ordinary care of the defendant’s agents. The effect of these prayers, if granted, would have been to withdraw the case from the consideration of the jury, and to decide it by the Court, as upon a demurrer to evidence. The refusal of the prayers of the defendant, and the granting of those of the plaintiff, is the ground of this appeal.

There are two classes of cases of. negligence, in one of which the question is submitted to the jury, and in the other, it is decided by the Court. It is difficult in many cases to determine to which tribunal the question of negligence belongs, so close is the ⁶⁵⁵ resemblance in many of tbeir features and so minute the difference of circumstances; yet the distinction is well established, and the most recent decisions of this Court, sustained by the authority of other tribunals, English and American, seem to include the present, as a question of law. What constitutes negligence is generally a question ■of fact, and as such is usually submitted to the jury; the Courts being reluctant where the facts are complicated •and inferences to be drawn and the evidence contradictory to withdraw such questions from their decision. Price’s Case, 29 Md., 420 ; Fryer’s Case, 30 Md., 47 ; Trainor’s Case, 33 Md., 542 ; Mulligan’s Case, 45 Md., 486 .

But it being the province of the Court to determiue the legal sufficiency of evidence, it sometimes becomes their duty (where the main facts are uncontroverted) to decide whether the facts offered in evidence-are such as would constitute such negligence in law as would debar the plaintiff’s right to recover. Wilkinson’s Case, 30 Md., 224 ; Andrews’ Case, 39 Md., 329 . In Fitzpatrick’s Case, 35 Md., 32 , it was said by this Court that many cases could be suggested where the question of negligence-(of a railroad ■company sued for damages for injuries sustained by its alleged negligence) could properly