Philadelphia, Wilmington & Baltimore Railroad v. Stebbing

Alvey, J., delivered the opinion of the Court. We think the Court below was quite right in refusing to withdraw this case from the jury, on the prayers of the defendant. While the testimony as to the material facts of the case, was very conflicting, that given on the part of the plaintiff entitled him to have the weight and credibility of the whole evidence passed upon by the jury. For ⁵¹⁴ though it he true, if we assume the truth of all the evidence on the part of the defendant, there would he no ground for recovery by the plaintiff, yet the evidence on the part of the plaintiff, if believed by the jury, might well afford ground for the conclusion that there was such negligence on the part of the defendent as to entitle the plaintiff to recover.

Whether the employés of the defendant in charge of the train ran the train at a greater rate of speed than that allowed by the ordinance of the town of Port Deposit, or whether they rang the hell to give warning of the approach of the train, are facts in regard to which the testimony is in direct conflict. They did not sound the whistle; and they were running the engine and tender backwards, in which position the air-brakes were powerless over the train. Both engineer and fireman prove that they saw the plaintiff and his fellow-laborer at work in near proximity to the railroad tracks, at considerable distance before reaching the spot; and that being so, it was their duty to avoid running upon them without giving signal or warning of approach. But both the engineer and fireman say that the train was slowed xip, and was not running at the time of the accident, at a rate of speed exceeding from four to six miles an hour, and that the hell was continuously rung after leaving what is known as the Bank station, until the train reached the point of the accident.

If this he so, clearly, there could he no fault or negligence imputed to the defendant ; but the direct and proximate cause of the accident would he imputable to the negligence of the plaintiff, in putting himself in a place of possible danger, and in not looking out for the approach of the train. We do not, however, intend to intimate any opinion as to the proper conclusion to he drawn from the conflicting evidence, hut leave that to he done by the jury, to whom the consideration of the facts belong. In all these cases where negligence is the ground of the action, and the plaintiff was not a passenger of the defend ⁵¹⁵ ant at the time of the injury received, the onus of proof is upon the plaintiff to trace the cause of his injury directly to the fault or neglect of the defendant, and to do this he must show the circumstances under which the injury was received. And if from the circumstances thus shown it appears that the fault was mutual and concurrent, and the plaintiff is justly liable to have fairly imputed to him direct contributory negligence in the production of the accident, he shows himself to he disentitled to recover.

Frech vs. P. W. & B. R. Co., 39 Md., 574 ; Cooley on Torts, 673. The principle laid down by an eminent English Judge, and which was approved by the Court in Exchequer Chamber, and by the House of Lords, (Daniel vs. Metropolitan Ry. Co., L. R., 3 C. P., 591; Ibid., 5 H. L., 45,) is clearly a correct one, and that is, that it is not ■enough for the plaintiff to show that he has been injured by an accident upon the defendant’s road, and thence to argue that the defendant is liable even prima facie. It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendant might and ought to have resorted to; and further -that the plaintiff should also show with reasonable certainty what particular precautions should have been taken to avoid the accident.

Here, according to the contention of the plaintiff, the accident resulted from the unauthorized rate of speed with which the train was run through the town, and the neglect to give signals of the approach of the train. These facts are material, and in regard to which, as we have seen, the evidence is conflicting, making a question appropriate for the jury. In regard to the first prayer, granted at the instance of the plaintiff, as the statement of a general proposition, it is unexceptionable. It is very general in its terms, it is true, and did not impart much instruction to the jury, ⁵¹⁶ as to the value and legal bearing of any particular fact in proof.

But the general legal proposition thereby formulated is free from error, however much it may be wanting in specific reference to the facts of the case. But with respect'to the third prayer of the plaintiff, which was granted, we think there was error. It was well calculated to mislead the jury. It declares that, under the town ordinance, it was negligence per se for the defendant to run its cars through the town at any rate of speed exceeding ten miles an hour; and if it did run its cars at any greater rate of speed, however small the excess, “the defendant was bound to use the highest possible degree of care and caution, which it had the means and power to employ, having regard to the business in which it was engaged.” With respect to the two branches, or rather propositions, embraced in this instruction, it may be observed, that if the running of the train through the town at any rate of speed in excess of ten miles per hour be negligence per se, it would not have been easy for the defendant to escape the consequences of that negligence by the exercise of the degree of care required by the latter branch of the instruction, unless, indeed, it be shown that the negligent act of the defendant in