Norfolk & Western Ry. Co. v. Smith

⁷⁴ Page, J., delivered the opinion .of the Court. The effect of sec. 28 of Art. 23 of the Code, was decided in Northern Central Railway Company v. Ward, 63 Md. 362 , to be “to relieve the plaintiff .from the objection which the common law imposes.” The duty rests (now) “upon the defendant to supply proper and adequate proof in rebuttal of the presumption of negligence. In other words, it must be assumed that the injury sustained was caused by the defendant’s negligence in the absence of satisfactory and sufficient proof to the contrary. The defendant may supply this proof by showing a state of facts demonstrating care and caution on the part of its agents; and it may also show that the accident resulted from negligence on the part of the plaintiff.” B. & O. R. R. Co. v. Mulligan, 45 Md. 486 , where it is said that the railroad company is entitled to the “unmolested use of its road; and it is the duty of owners to keep cattle within their enclosures, but the failure to do so, will not .justify persons in the charge and managément of a railway train to run over them, if by the exercise of ordinary care it can be avoided.” The statute, however, does not change the common law in respect to contributory negligence on the part of the plaintiff; and therefore if he has by his negligence or misconduct contributed directly and immediately to the production of the injury complained of, he is precluded from-recovering damages, as he was before the passage of the statute.

But this Court said in W. Md. R. R. Co. v. Carter, 59 Md. 306 , “if he merely allows his stock to escape from his enclosure and to stray at large unattended and thus get upon the railroad of the company, and there be injured, while the entry'of the stock upon the road may be an act of negligence, as well as a trespass, on the part of the plaintiff, in thus allowing his stock to stray at large unattended, yet such negligence is not of that direct and proximate character as to be so contributory to the production of the injury .as to preclude the plaintiff the right to recover, if the accident could have been avoided by the use of reasonable and proper care on the part of the defendant or its agents, under the circumstances of the case.” ⁷⁵ In this case, the proof showed, that the horse in question, together with other horses, was placed in a field near the railroad, and the gates fastened. During the night it escaped, wandered to the track, and was killed by the appellant’s train. There is nothing in this, under the decision last cited, that tended to show the plaintiff was guilty of negligence, even though, it has appeared that the animal was allowed to stray at large unattended or was negligently cared for, so that