Western Maryland Railroad v. Carter

Alvey, J., delivered the opinion of the Court. This action was brought to recover of the defendant the value of a colt, alleged to have been killed on the railroad of the defendant by the negligence of its employes. The first question presented on the record arises upon the rejection of evidence offered by the defendant, and which was the subject of the first bill of exception. But the materiality of the evidence offered is not perceived; and besides it was made quite unimportant to the defendant, even if it had been material, inasmuch as the same facts sought to be proved had been given in evidence on the part of the plaintiff.

The defendant, therefore, was in no manner injured by the ruling of the Court, as stated in this bill of exception. The main question in the case arises upon the prayers offered by the defendant and which were rejected by the Court, and upon the instructions of the Court given in lieu of the prayers rejected. The statute upon this subject provides, that “ Railroad companies shall be responsible for injuries, resulting in death or otherwise, inflicted upon any stock, as cattle, horses, sheep, hogs, &c., 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 without any negligence on the part of the company or its agents.” Code, Art. 77, sec. 1. This statutory provision has been under consideration in several cases in this Court, and the construction adopted, according to the plain language of the statute, is that when stock is killed or injured by a railroad train, the law imputes negligence to the agents of the company, and in order to relieve itself from liability it is incumbent upon ³⁰⁹ the company to show that the damage complained of was the result of an accident that could not have been avoided by the use of reasonable and proper care, and that such care was in fact exercised to avoid the injury.

The common law rule, which required the plaintiff to show affirmatively that the injury was caused by the negligence of the defendant, is changed by the statute, in cases like the present, and the onus of proof, instead of resting on the plaintiff, to show negligence, is imposed on the defendant, to show the absence of negligence, on its part, by way of defence. The statute, however, has not changed the common law rule in respect to contributory negligence on the part of the plaintiff in such actions. If, therefore, the plaintiff has, by his own negligence or misconduct, contributed, directly and immediately, to the production of the injury complained of, he is regarded as the author of his misfortune, and he is as much precluded from recovering damages therefor since the statute as before. Railroad Co. vs. Lamborn, 12 Md., 251 ; Keech vs. Railroad Co., 17 Md., 32 .

But if he merely allow his stock to escape from his enclosure, and to stray at large unattended, and thus get upon the railroad of the company and there he injured,—while the entry of the stock upon t e road may he an act of negligence, as well as a trespass, on the part of the plaintiff, in thus allowing his stock to stray at large unattended, yet such negligence is not of that direct and proximate character as to be so contributory to the production of the injury as to preclude the plaintiff the right to recover, if the accident could have heen avoided by the use of reasonable and proper care on the part of the defendant or its agents, under the circumstances of the case. Railroad Co. vs. Mulligan, 45 Md., 486 . Here, according to the proof in the case, the colt had strayed from the field where it had been placed to pasture, and it had been found and was being driven hack along the highway, which crossed the railroad of the defendant. ³¹⁰ According to the proof on the part of the plaintiff, it was immediately at the road crossing that the accident occurred; but according to the proof on the part of the defendant, the colt was not struck at the crossing, hut at a point lower down on the railroad. But whether the accident occurred at the one point or the other, the whole matter resolved itself into a single question, and that was, whether the. employes of the defendant could have avoided the accident by the use of reasonable and proper diligence, after they could, by careful watch, have discovered the colt and the peril in which it was placed ?

Upon this question the testimony was conflicting, hut it appears to have been fully and fairly submitted to the jury, and they have found adversely to the defendant. The defendant does not insist upon its first, second,