State ex rel. Bacon v. Baltimore & Potomac Railroad

Alvey, J., delivered the opinion of the Court. This suit was brought to recover damages for the death of George Bacon, a colored man, who was struck and killed by an engine on the road of the defendant, about 10 o’clock at night of the 6th of September, 1819; the accident being alleged to have occurred by the negligence of the employés of the defendant. At the trial in the Court below, after all the testimony was in, both for plaintiff and defendant, prayers for instruction were offered by the plaintiff, but which were rejected; and the Court, at the instance of the defendant, instructed the jury, “that the plaintiff was not.entitled to recover, because the deceased directly contributed to cause his death;” and a verdict was rendered for the defendant accordingly. And the first and principal question is, whether this instruction was rightly given. .

In actions like the present, to recover damages for personal injuries suffered by the alleged negligence of the defendant, it is incumbent upon the plaintiff to prove, 1st, that there was a neglect of duty by the defendant; and, 2ndly, that the injury sustained was the direct consequence of such neglect of duty. And in many cases, as in the present, a third question arises, and that is, whether the party killed or injured was so far to blame, as to have directly contributed, by his own negligence or want of caution, to produce the injury complained of. This being matter of defence, the onus of proof in respect to it is properly on the defendant. But it is not unfrequently the case, that material defensive facts are disclosed by the ⁴⁸⁵ testimony adduced on the part of the plaintiff, and where such is the case, and the evidence thus adduced by the plaintiff clearly establishes the fact of contributory negligence on the part of the party killed or injured, there is really nothing to be left to the jury to find.

For while it is perfectly true, that where the plaintiff adduces evidence which, if uncontradicted, would justify and sustain a verdict, no amount of contradictory evidence, however strong, will justify the Court in withdrawing the case from the jury; yet, if it be proved, as part of the plaintiff’s case, or if it be otherwise proved and not controverted or denied by the plaintiff, that the party injured or killed was clearly guilty of negligence in the occurrence of the accident, and that such accident would not have occurred but for the negligence of the party injured directly contributing thereto, in such case, the defendant is entitled to have the jury instructed that their verdict must be for the defendant. The facts are taken as established, and the question then becomes one of law for the Court, to be passed upon and decided as upon a demurrer to evidence. There is no office to be performed by the jury unless there is a contest in regard to the material facts involved in the issue or question to be decided, and if the facts, sufficient in themselves to establish clearly the contributory negligence on the part of the party injured, be either admitted or shown in proof by the plaintiff while attempting to prove negligence on the part of the defendant, the Court is well justified in acting upon such proof as true, and in directing the jury accordingly. As illustrative of this, we may take the example given of the application of the rule by Lord Chancellor Cairns, in the case of the Dublin, Wicklow & Wexford R. Co. vs. Slattery, 3 Appeal Cas., Ho.

Lords, 1166, to the effect that if a train, which ought to give signal by whistle when approaching a road crossing, or passing a station, were to pass without giving such signal, and a party were, in broad daylight, and without anything, ⁴⁸⁶ either in the structure of the line or otherwise, to obstruct his view, to cross in front of the advancing train and to he killed, the Judge ought to instruct the jury that it was the folly and recklessness of the party himself, and not the carelessness of the company, which caused his death. In such case, says the Chancellor, “the jury should not he allowed to connect the carelessness in not whistling, with the accident to the man who rushed, with his eyes open, on his own destruction.” In this case the facts are few, and from their nature it requires no long process of deduction to enable us to arrive at a definite and certain conclusion from them. The proof on the part of the plaintiff shows clearly that Bacon, the deceased, had lived for several years immediately on the roadside, and was well acquainted with the running of the trains. That he, with his companion Williams, on the evening of the accident, sometime between 6 and 7 o’clock, left his house and went down the railroad to a store, immediately on the road side, a distance of something over a mile and a half from his house.

He remained at this store until about 10 o’clock, when he, Avith his companion, started to return to his house, Avalking up the track of the railroad. The train which caused the death of Bacon was a regular express train from Baltimore to Washington; and the schedule time for leaving Baltimore was 9 o’clock at night, or 9.05 by Philadelphia time, though it was a little late that night in leaving Baltimore; and, according to the testimony on the part of the plaintiff, it was a few minutes late when it reached Seabrook station, near which the accident occured; though, according to the testimony on the part of the defendant, the time had been fully made up before the train reached that station. While at the store neither Bacon nor Williams kept any lookout for the passage of the train, though they knew that such train was to pass, and of the time it was due at Seabrook station.' Just before leaving the store for ⁴⁸⁷ home, Bacon took out his watch, and informed himself of the time, according to his time-piece, and observed to Williams, his companion, that “there is a train comes along —a very swift running train—a through train, and does not stop; and he didn’t like to be on the road at that time of night, as it was very dark.” The witness further says, that the deceased “looked at his watch to see if the train had passed; lie said it was time the train ouglú to have passed, and at that time it ought to have been in Washington.” Bacon, at the same time, remarked that the train was due at Seabrook station at 10 o’clock, and that it was then four or five minutes after 10 o’clock; he thought it ought to have passed. And thereupon the parties started to walk u|> the railroad track to Bacon’s house, instead of taking what was known as the .“ Telegraph road,” running in the same direction, though, by that road, the distance was a little greater.

The parties had proceeded up the track of the railroad a distance of