Cumberland & Pennsylvania Railroad v. State ex rel. Fazenbaker

Stewart, J., delivered the opinion of the Court. William Eazenbaker was killed on the 26th March, 1870, by the explosion of a locomotive belonging to the appellant; and the action was brought in the name of the State, for the use of his widow and children, to recover damages from the appellant on account thereof. Exception has been taken, by the appellant, to the rulings of the Circuit Court, in granting the appellee’s first prayer, and rejecting the first, second, fourth and fifth prayers of the appellant, and modifying its first and fourth prayers. The prayer of the appellee submitted to the jury, amongst other matters, two prominent propositions, which form also, leading considerations in the several prayers of the appellant.

First. — The question of negligence on the part of the deceased, contributing to his own death, which, if found to be true, would defeat the action. To authorize a recovery, the prayer requires the jury to find from the evidence, that at the time of the accident, he was using ¹⁶⁹ ordinary care, and did not contribute to his own death, by the want of ordinary care. The proposition is presented both affirmatively and negatively, that is, before the jury, according to the theory of the prayer in this particular, could find for the plaintiff, they must be satisfied, not only that the deceased was using ordinary care at the time of the accident, but that he did not contribute to his own death by the want of ordinary care. The fifth prayer of the appellant merely involves this question, and requires the Court to determine it.

Second. — Reasonable skill, care and diligence on the part of the appellant, or its agents, which if found to be true, would relieve the appellant from responsibility for the accident. The first, second, third, fourth and sixth prayers of the appellant involve the consideration of this branch of the same question. What constituted negligence, or ordinary care, or the want of it in the party, contributing to his death; and the reasonable skill, care and diligence exercised on the part of the appellant, to relieve it from responsibility for the fatal occurrence, are questions, according to the nature of the evidence in this case, to be determined by the jury, from all the facts and circumstances. It is their province, from the controverted facts to make the reasonable deductions, and these questions must be referred to the jury.

Such is the rule and practice, although in some cases the question of negligence may be a legal one for the Court to decide. State, use of Miller vs. B. & O. R. R., 29 Md., 252 ; State, use of Price vs. B. & O. R. R., 29 Md., 420 ; Balt. City Pass. R. W. vs. Wilkinson, 30 Md., 224 ; B. & O. R. R. vs. Shipley, 31 Md., 368 ; B. & O. R. R. vs. Fitzpatrick, 35 Md., 44 ; B. & O. R. R. Co. vs. State, use of Dougherty, 36 Md., 366 .

But the Court will always instruct the jury, if applied to, as to the degree of diligence or skill and care which the law imposes upon