State ex rel. Coughlan v. Baltimore & Ohio Rail Road

Bowie, C. J., delivered the opinion of this Court. These are cross appeals, in an action instituted under the 1st and 2nd Sections of Article 65, of the Code, by the State, for the use of a widowed mother, whoso son was killed, under the circumstances detailed in the bill of exceptions. After evidence offered by both parties, a series of prayers was submitted by each, all of which were rejected and others ¹⁰⁰ given, by the Court instead thereof, to-which rejection, and the instructions given, the plaintiff and defendants severally excepted. The counsel of the defendants, having filed in these causes a declaration in writing, that in the event of an affirmance of the judgment as against the plaintiff on its appeal, in the first case, the defendants will abandon .their excejffions, it is proper first to inquire whether the appellant has been aggrieved by the action of the Court below.

The General Assembly of this State, in the year 1852, finding the common law maxim, “Personal actions die with the person,” unsuited to the circumstances and condition of the people, enacted a law entitled “ An Act to compensate the families of persons hilled by the wrongful act, neglect, or default of another person.” To máte its design more obvious, the fourth section provides “ the word persson shall apply to bodies politic and corporate,” and “ all -corporations shall be responsible under this act, for the wrongful acts, neglect or default of all agents employed by •them.” The material provisions of this Act, as well as its title, are derived from the 9th and 10th Victoria, and are embodied in Art. 65, (title Negligence) of the Code. The object of the several series of prayers was, 1st, to furnish the jury with a standard of care and diligence, required by law, of the defendants, to exempt 'them from liability for damages, for the injury incurred ; 2nd, to prescribe the care necessary to be exercised by the deceased, to entitle his next of kin to recover; 3rd, to define the measure of damages. The appellant’s first prayer required the defendants, under the circumstances therein predicated, “to* exercise the utmost care and diligence to prevent accidents endanger ¹⁰¹ ing the life or lives of the people or inhabitants of the said city.” The second held that the defendants were hound to use all the means and measures of precaution that the highest prudence would suggest, and which it was in their power to employ, and if the use of a guard or lookout at the he ad or in the rear of said cars * * was a measure by which such, accidents would probably be avoided, the omission was culpable negligence. The appellant’s third prayer affirms, that the jury in the estimate of damages should take into consideration, the expense to which the plaintiff was subjected in consequence of the accident, and the loss resulting therefrom not only to the present time, hut also the probable prospective loss and expense, etc., and that in estimating the said loss and damage, the jury are not limited to the actual pecuniary loss proved in said case.

The propositions laid clown by the Court, in the first instruction granted, are, That the defendants in the movement and management of their cars and engines were bound to exercise the utmost care and diligence which it was within their means and-power to employ to prevent accidents and injuring or endangering the life or lives of the people. And if the jury find that the child of the plaintiff’s cestui que use, was run over and killed by the defendants’ cars as described by the witnesses ; “and that if the defendant’s in the use and management of their cars and engines, had exercised the- highest degree of care and diligence, ‘ which it was wthin their means and power to employ,’ the said accident could have been prevented, then the plaintiff is entitled to recover in this action : but although the jury may find that the-said accident could have been prevented by the use of such care and diligence, on the part of the defendants, yet the ¹⁰² plaintiff is not entitled to recover if the jury believe the accident could have been avoided by the exercise of that degree of care by the said child which was under all the circumstances to be naturally and reasonably expected from one of said boy’s age and intelligence.” The degree of care and diligence, imposed by law on the defendants, in the instruction given by the Court, is as high as that required by the appellant’s prayers ; the degree is, the “utmost care and diligence,” the “highest it was within their means and power to employ the only material difference is, that one of the appellant’s prayers asked the Court to instruct the jury specifically “ that if the use of a guard or lookout, at the head or in the rear of said cars, was a measure by which such accidents would probably be avoided, the omission was culpable negligence.” The general terms, used by the Court, embraced all the particulars specified by the prayer of the appellant, qualified by the words, “it was within their means and power to employ.” The jury were at liberty to find under the instruction given, and perhaps did find that the absence of the guard constituted the want of “the highest care and diligence within the means and power of the defendants,” and therefore rendered their verdict in favor of the T-daintiff. The liability of the defendants in this case, did not depend upon their obligations as carriers of passengers, in Avhich character they are bound to use ‘ ‘ the utmost care and diligence which human foresight can use.” Stockton vs. Frey, 4 G., 422, 423. Worthington vs. Balto. & Ohio R. R., 21 Md. Rep., 275 .

But their liability, if any, arises upon a statute which limits 'the action to such wrongful act, neglect or default, “ as would (if death had not ensued) have entitled the party injured to maintain an action and receive damages in respect thereof.” Vide Code, Art. 65, Sec. 1. The party injured not being a passenger, the defendants were not required to exercise that degree of vigilance, ¹⁰³ which the law requires towards those to whom there is a relation of trust and confidence or bailment between the parties. ‘‘ Towards the one the liability of the latter springs from a contract express or implied, and upheld by an adequate consideration. Towards the other, he is under no obligation but that of justice and humanity. While engaged in their lawful business, both are bound to use a degree of caution suited to the exigencies of the case.” 8 Barbour, 378.

In an analagous case, this Court said, rail road companies should use “such care and diligence in using the locomotive upon the road, as would be exercised by skillful, prudent and discreet persons having the control and management of the engine, regarding their duty to the company, the demands of the public and the interests of those having property, and having a proper desire to avoid injuring property along the road.” This was said in a case of injury to property, but is cited with approbation by Red-field as applicable to persons. Redfield on Railways, 395. 4 Md. Rep., 251 . The Court’s instruction did not close with the definition of the degree of care and diligence on the part of defendants, but proceeded to inform the jury that although the accident could have been prevented by the exercise of such care and •diligence by the defendants, yet the plaintiff is not entitled to recover, if the jury believe the accident could have been •avoided by the exercise of such care by the child as might under all the circumstances have been reasonably expected from one of his age and intelligence. In other words, if there was neglect or default on the part of the boy, or the absence of that prudence which boys of like age and capacity usually exhibit, the defendants were not liable, although by the exercise of extraordinary care on their part the accident might have been prevented.

This ruling is in conformity with all the text writers, ¹⁰⁴ and the great majority of adjudged cases. Redfield on Railways, 337. 2 C. & P., 730. 8 C. B., 115. It is objected on the part of the plaintiff below, the appellant in this case, that the Court’s first instruction