Philadelphia, Wilmington & Baltimore Railroad v. State ex rel. Bitzer

Gjelason, J., delivered tlie opinion of the Court. At the trial of this caso, in the Circuit Court for Carroll County, exceptions were taken by the appellant, to the granting of the three prayers of the appellee, as well as to the rejection of all its prayers, except the seventh, thirteenth, fourteenth and seventeenth, as also to the instruction given by the Court in lieu of the third, fourth, tenth, and eleventh. A motion in arrest of judgment was also filed, which was overruled, and we will dispose of that before considering the prayers. The motion is based on twelve reasons, which are especially assigned in the motion filed.

The first and second reasons assigned are, that the appellee did not comply with the third section of Article 65 of the Code, under which the suit is brought, by delivering, with the declaration, to the defendant, or its attorney, a full particular of the persons for whom and in whose behalf the action was brought, and the nature of the claim in respect of which damages were sought to be recovered. The object of this section of the Code was to have the defendant furnished with information, which would enable it to plead to the declaration and make its defence to the suit. In the case of The Baltimore and Ohio Railroad Company vs. The State, use of Woodward, 41 M.d., 297, this Court has said that the particular, when furnished, is intended for the same purpose and has the same effect as a bill of particulars in other cases, and restricts the plaintiff’s proof and limits his recovery to the claim therein stated. The particular is to be given to the defendant for his own benefit, and, as the defendant in this case did not demand it, but filed its pleas without it, it may be considered as having waived its right to have it.

But we do not think that this section is mandatory. The ³⁹⁸ right of action existed before the declaration was filed, and, in this case, the declaration, when filed, stated the names of the parties for whose use the suit was brought, and described them as the widow and children of Samuel Bitzer, deceased; stated particularly the injury to, and consequent death of, Samuel Bitzér, "and the nature and amount of their claim, and it is difficult to conceive what more particular statement could have been furnished to the defendant. The 65th Article of our Code seems to have been copied from Lord Campbell’s Act of 9 and 10 Victoria, ch. 93, and sec. 4 of that Act has been construed in the case of Murphy vs. Logan, 10 Irish Com. Law, 87.

In that case no particular had . been furnished or delivered to the defendant, and that fact was pleaded in bar of the action. To this plea a demurrer was interposed and Perrin, Judge, in delivering the opinion of the Court, said, that the delivery of a particular to the defendant was “ a requirement merely in accordance with the rules and practice of the Court in which the action may be depending. But the right of action accrues prior to the issuing of the declaration, and exists altogether independently of the fact of the -declaration being issued or not. If the defendant require particulars, he should call upon the plaintiff to furnish them; or, in case of his refusal, apply to the Court to compel him to do so and the demurrer was sustained.” The requirement to deliver a “particular,” as provided by sec. 3 of the Code, is merely directory, and in nowise affects the right of the plaintiff to maintain the suit.

It is no part of the record; is not even required to be filed, but merely delivered to the defendant or its attorney. Motions in arrest are for matters apparent on the face of the record, and for this reason, as well as for those before stated, the first and second causes assigned, furnish no ground for sustaining the motion. The declaration alleges that Sarah Bitzer is the widow, and the other ³⁹⁹ equitable plaintiffs are the children of Samuel Bitzer, that his foot was caught in the imperfect track of the defendant through the wrongful act, default or neglect of the defendant, and not through his own default or negligence, that he was thereby thrown down and the car crushed beneath its wheel truck and body, the left leg and body of said Samuel Bitzer in a horrible manner, thereby causing his death, and the plaintiff claims ten thousand dollars. The declaration, therefore, contains sufficient averments in substance that Samuel Bitzer was rightfully on the defendant’s road in his lawful employment; that the latter’s road was imperfect through its negligence, and that said Bitzer though not negligent himself had his foot caught in the imperfect track of the defendant, and that in consequence thereof the cars which he had in charge, ran over him, and caused his death, 'for which the equitable plaintiffe claim ten thousand dollars damages for the loss sustained by them, in consequence of his, the said Samuel Bitzer’s death.

It was not necessary to allege that the defendant’s negligence was such that, if death had not ensued, Samuel Bitzer himself would have been entitled to recover for the injury done him. There was nothing therefore in any of the other reasons assigned, which furnished any ground for sustaining the motion in arrest, and it was therefore properly overruled. The three prayers granted at the instance of the appellee, state the law with respect to negligence and the measure of damages, as it has often been heretofore announced by this Court, in cases arising under the 65th Article of the Code, and no valid objection can be urged against them, and there is evidence in the record to support them, and which was properly submitted to the jury, and they were rightly granted. There was no evidence of any such gross or glaring neglect on the part of Samuel Bitzer, as would justify the Court in saying that it amounted in law to contributory negligence.

The evidence of negligence ⁴⁰⁰ on the part of the appellee as well