Northern Central Railway Co. v. Green

Pearce, J., delivered the opinion of the Court. This suit was brought to recover damages for the killing of two horses of the plaintiff by a freight train of the defendant, while the horses were fast in a trestle bridge into which they had fallen upon the private right of way of the defendant. As the legal sufficiency of the evidence adduced to prove the negligence of the defendant, and that such negligence was the sole cause of the death of the horses, without any negligence on the part of the plaintiff directly contributing thereto, is challenged by the prayers that were refused, it will be necessary to state somewhat fully the testimony in the case. At the time of the accident, or just before its occurrence, two of the plaintiff’s sérvants, John Scarborough and Robert Williamson, were hauling coal in a wagon drawn by these horses, from Sherwood station on the N. O. Railway to plaintiff’s residence about a mile distant.

Scarborough was the plaintiff’s driver, and Williamson was his helper in loading and unloading. While returning to the station with the empty wagon, both men being then in the wagon, the bolt which fastened the tongue to the wagon broke of fell out, and the horses ran off with the pole and double and single trees attached. Scarborough was pulled off the wagon by the horses, thrown down, and the reins tom from him, and Williamson was left in the wagon. When the horses reached' the car from which they had been loading coal, they ran upon the track of the railway towards Lutherville, Scarborough and Williamson running after them.

Learning the direction the horses had taken, these men followed up the railway and ⁴⁹⁶ found both horses on the south bound track fast in.a trestle bridge over a small stream, both horses resting on their bellies on the ties, all four legs of each horse hanging below the ties. The pole was still attached by the neck yoke, but the double and single trees had been lost. This Bridge is something over a quarter mile north of Sherwood station where the horses went upon the track, and about three quarters of a mile from Lutherville station, and between these two points the track is straight, but curves to the northeast a very short distance above Lutherville station. William Davis was walking on the track going south as the horses approached in a run going north, and ran to meet them about ten yards south of the bridge, but was unable to stop them- and when they struck the bridge they fell through the ties as above described.

Davis was a colored man and the first person at the spot, about two minutes before anyone else. He called two other colored men in a field nearby, and these came next, with another colored man, and about the same time, Scarborough came, followed by Williamson a little later. The next man on the spot was Mr. Kane, a salesman for a city firm who was driving across the track on a private road 800 feet south of the trestle, when the horses came up in front of him at full speed. He tied his horse to a fence and went up to the trestle where the horses were fast, with four colored men and two white men around them.

When Scarborough came up, one of the colored men, Jenkins, told the others that if they would go and get some lumber from a shed nearby, they could get the horses out, and Scarborough and some others got a number of boards from this shed, and laid them close together on the ties, thinking by this means to get the horses out, which were then apparently uninjured and perfectly quiet. Mr. Kane testified that when he got there the pole was still attached, but was unhooked while he was there; that someone said there would be a train along shortly, and he said, “if you men will keep on carrying lumber I will go up and stop the train,” and that he did then go up the track “about a quarter of a mile,” and that ⁴⁹⁷ ■when he saw the engine turn the curve at Lutherville he waved his hat and handkerchief, looking toward the train all the time, and not seeing what was behind him; that the train approached and when it came up to him he jumped to the side, and turned and came back towards the bridge; that he was too far up the track to see when the horses were struck, though he knew the engine passed the bridge where the horses were, and that the engine and about half a car length were b'eyond the bridge when the engine stopped. One of the horses was killed outright; the other was badly injured, but after the engine was backed, it got up and could walk, but it was afterwards necessary to kill it to relieve its suffering. Scarborough said', Mr. Kane said, while they were getting' the boards, he would go up and signal the train, and he went, but that he did not know how far up he went, and that he saw the smoke of the train near Lutherville before it got to the station.

Davis said he spoke to a white gentleman about stopping the train who said he would take charge of it; that he, Davis, thought the boards were of no use, and that the only way to save the horses was to have the train stopped, and get a derrick to lift them put of the trestle. Jenkins said he could see the smoke as the train came round the bend, and he said, “here comes the train,” and the white gentleman replied,-“you work on the horses, and I will stop the train.” The train was composed of twenty-five cars all loaded, mostly with coal, averaging thirty-four feet in length, and the grade from Lutherville to the trestle a medium down grade. The engineer, Mr. Wilson, was an experienced man running as such on that railway ten years. He said': “When I came round the curve I saw a gang of men at work, trackmen I supposed, and I ran about half the distance, probably about 275 yards, then I saw a man run up the track and wave a handkerchief.

I threw my brake in emergency, threw sand on the rail, reversed my engine and ran into the horses; that was the best I could do, and I did everything that could possibly be done.” He said gangs of trackmen are met every ⁴⁹⁸ four or five miles, and no signal is ever required for them. Their foreman looks out for them. If the men at the trestle whom he took to he trackmen, had been such, and the condition of the bridge was dangerous, the rule required them to send a man with a red flag as far up as Lutherville to signal him to stop in time to avoid the danger. He first saw the signal when he was about 275 yards from the trestle, and he supposed the bridge was in a dangerous condition.

His first thought was to stop as quick as he could to avoid danger to the crew and the train. This was his duty under a strict rufe. The conductor, Mr. Miller, was on the engine at the time. He said they were, about 250 yards from the trestle when he saw the man signalling, and at once he heard the air go on, and the train was going about 25 miles an hour.

The fireman, Mr. Taylor, was firing as they came towards the trestle, and did not either see the men on the trestle, or the man signalling until he heard the engineer “slap on the emergency brake” when he jumped up' to look, but immediately after looking into the fire box while firing, one cannot see clearly. When about two car lengths from the trestle he jumped off, as he was taking no chances, and the conductor jumped also. The engineer said he did not see the horses until he was within about one hundred feet of the trestle, because his attention was upon stopping the train; Taylor said he did not seb what was the matter until he lit on the ground, and it does not appear when the conductor first saw the horses. Riley, the flagman on the train, was in the caboose at the rear when the train stopped, and saw nothing of what occurred.

Morrison, was brakeman on the train in the middle of the train. He said that he knew from the action of the train that the emergency brakes were applied but he could not say how far they were from the bridge when they were applied and that he saw no signal at any time. Donnelly, foreman of track gang at that section of the railway said that if they were working on that trestle and it ⁴⁹⁹ was necessary to flag the train, that he always sent the signal man above Lutherville on account of the grade, and tjhat their book of rules calls for 1200 yards,' but they always named a place to designate the required distance. Hr.

Fridinger for the plaintiff, in rebuttal, having been a locomotive engineer for twenty-three years and familiar with the handling of the air brake up to the year 1900, said he had seen the section of the railway nsed in evidence in this case, and that in his opinion with an emergency application of the Westinghouse air brake with which the train was equipped, it ought to be stopped inside of 250 yards. To the contrary, Mr. Watkins, a locomotive engineer for ten years for defendant, and thoroughly familiar with that section of that railway, in answer to a question describing the circumstances as has been detailed herein, said positively that in his opinion that train could not have been stopped before crossing the bridge. The above summary of the testimony is sufficiently full to permit a proper examination of the rulings on the prayers, which are brought up by the 16th exception, there being fifteen exceptions to rulings on the testimony. The plaintiff offered ’ three prayers all of which were granted, and the defendant offered ten, of which the 5th, 8th and 9th were granted, and all the rest were refused.

We shall request the reporter to insert them all. The principal questions are raised by these prayers. All of the plaintiff’s prayers are based upon the contention that this case is within section 281 of Article 23 of the Code of Public General Laws, which is as follows: “Railroad companies shall be responsible for injuries resulting in death, or otherwise inflicted upon any stock, as cattle, horses, hogs, sheep, etc., or by fire occasioned by their engines or carriages, upon any of their roads and the branches thereof, unless the said companies can prove to the satisfaction of the justice or other tribunal before which the suit may be tried, that the injury complained of was committed ⁵⁰⁰ ■without any negligence on the part of the company or its agents/’. The defendant contends: 1st.

That the above statute is notajiplieable to this case, and that it was error therefore to-grant any of those three prayers. 2nd. That the case'should have been taken from the jury as requested in the defendant’s 1st,.2nd, 7th and 10th prayers, for the reasons therein stated. 3rd. That even if the statute should he held applica- - hie, and the case he allowed to go to the jury, it was error to-grant the plaintiff’s prayers which ignored the evidence of contributory negligence on the part of the plaintiff. 4th. That if none of these contentions be sustained, there should still he a reversal for error in refusing the defendant’s 3rd, 4th and 6th prayers.

The statute in question was enacted in IS38, and has been frequently before this Court, though the precise question here presented has never been considered, nor so far as we have been able to discover has it been- decided elsewhere under a similar statute. The statute was first considered in Baltimore and Susquehanna R. R. v. Woodruff, 4 Md. 242 , where the damages-claimed were caused by fire. A previous- Act, -Ch. 309 of 1837, made railroads responsible in damages for property injured by fire caused by engines on the road, whether there was negligence or not. Referring to that Act, Judge Ecclestost said in Woodruff's Case, supra: “The Legislature deeming it too severe and rigorous, thought proper again to make the absence of negligence a defence, and for that purpose passed the Act of 1838.

In doing which, we think, they have-restored the rules of the common law in relation to negligence, except only releasing the plaintiff from the obligation to prove it, and casting the onus of proving its absence on the defendant." And the Court there further said: “The words without any negligence, must mean, without any negligence occasioned' by the want of reasonable care. * * * The statute' does not give any new cause of action, nor does it give a new action to recover damages for an injury known to the com- ⁵⁰¹ man law. It simply changes á rule of evidence, by releasing the plaintiff from proving negligence if the fact of the fire” (or as in this ease, the fact of the killing of the horses) “is established, and casts the onus upon the defendant of showing there was no negligence, or, in other words' that there w-as proper diligence." To this construction of the statute the Court has consistently adhered in all the later cases, in accordance with the cardinal rule of interpretation “that it is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely required.” Hooper v. Baltimore, 12 Md. 475 . The disposition of the Court wherever the question of the construction of the statute has arisen, has been to restrict its application. This is well illustrated in Lamborn's Case, 12 Md. 257 , the first case reported touching injuries to stock.

In that- casé the Act of 1846, an amendment of the Act of 1838, was discussed, its language requiring the defendant to prove that the injury was the result of unavoidable accident. The Corirt said that language imposed oil the company the highest degree of care and caution, but nevertheless held that the Act applied “only to those cases where the party complaining has not contributed in any manner by his own negligence or violation of law to the act complained of. Or in other words, the rule of the common law to which we have adverted remains unchanged by the Acts of Assembly to which we have referred.” ■ In Keech’s Case, 17 Md. 46 , Judge Bartol., referring to Lamfbornfs Case, said: “We can give no other construction to these Acts of Assembly than that which we have heretofore declared. They leave the question of negligence on the part of the plaintiff where it was at the common law and do not confer upon a party who is