Kean v. Baltimore & Ohio Railroad

Alvey, C. J., delivered the opinion of the Court. In the trial of this case in the Court below the matters in issue were submitted to the jury, and this Court is not required, by any ruling that was made, to review the facts of the case. We have only to deal with the legal propositions as we find them embodied in the prayers offered by the respective parties. And the legal propositions involved and really applicable to the case would seem to be few and simple, and such as have been announced by this Court in repeated decisions.

The action having been brought for the alleged negligence of the defendant, whereby the plaintiff was injured, the general and leading proposition is, that the plaintiff must show; the injury he received was occasioned exclusively by the negligence of the defendant. He is certainly not entitled to recover for the consequences of any negligence of his own. If therefore it be found that the plaintiff has himself been guilty of any negligence or want of ordinary care that has direcily contributed to cause the accident, he can have no cause of action against the defendant for the injury received, though the latter may likewise have been guilty of negligence. And this whether the plaintiff was sober or drunk at the time the accident occurred.

This general proposition, however, is subject to another which is equally well established, and that is, that though the plaintiff may have been guilty of negligence, and that negligence may, in fact, have remotely contributed to the production of the accident, yet, if the defendant could, in the result, by the exercise of reasonable care and diligence, in view of the circumstances of the case, have avoided the accident, the plaintiff’s negligence, being the more remote cause, will not excuse the defendant. In this case, therefore, if the plaintiff was in fact drunk, and failed to observe the reasonable precautions to avoid danger to himself while in the act of crossing the defendant’s road tracks, or ¹⁶⁸ ■while upon the tracks of the road, though improperly there, and under circumstances to constitute negligence on his part, yet, if the defendant’s servants in charge of the train, after discovering the perilous situation of the plaintiff, could, hy the exercise of reasonable care and diligence, have avoided the accident, they were hound to do so. If they possessed knowledge of the plaintiff’s situation, and failed to make proper and reasonable exertions whereby he could have been saved, the defendant would he liable, though it was by reason of the negligence or drunken condition of the plaintiff that he was found in the situation of danger. In such case their failure to use due care and exertion would constitute negligence which would form the direct and proximate cause of the injury.

But, on the other hand, if the plaintiff was on the crossing, or at any other place on the road tracks of the defendant, in such condition as not to be able to take care of himself, or paid no heed to the warnings of the approach of the train; or if from negligence, or reckless indifference to the perils of his situation, he failed to observe the precautions necessary to his safety, and his situation was not known to those in charge of the train, and,' while observing a careful lookout, was not discovered by them in time, by the use of reasonable care and diligence, to save him from injury, then-his own want of care and reckless negligence in putting himself in such place of danger, would deprive him of all ground of action against the defendant. And this would be the case though there may have been negligence on the part of the defendant in detaching the engine from the cars and allowing the latter to run down the switch hy their own momentum, or by the force of the. grade. In such case, the negligence would be mutual or concurrent, and that of the plaintiff so directly contributing to the production of the accident as to preclude the right of recovery. With these well settled principles in view, there is but little difficulty in passing upon the several prayers for in ¹⁶⁹ struction that were ruled upon by the Court helow.

The theory of the first prayer offered hy the plaintiff would seem to he correct enough, though it is greatly wanting in explicit reference to the facts hearing upon the question of the contributory negligence of the plaintiff. The very general terms in which that question was put to the jury, hy that prayer, hardly gave them an intelligent guide for their consideration of the proper relation of that question to the other facts upon which the plaintiff sought to recover. Generalities, such as are employed in that prayer, in ordinary contemplation, mean little or nothing ; and the modification of the prayer by the Court did not add much to its perspicuity. As, however, the case is to he remanded for retrial, because of other defects in some of the instructions given, the