Western Maryland Railroad v. Shivers

McSherry, C. J., delivered the opinion of the Court. , Thiá is a personal injury case. The appellee, who was travelling from Hagerstown to Unionbridge in one of the coaches of the appellant company, was seriously hurt by reason of the ³⁹³ car suddenly leaving the rails, and, after running over the cross-ties for several hundred feet, plunging down a precipitous mountain declivity. The trial resulted in a verdict for the appellee, and upon that verdict a judgment was entered against the appellant. From that judgment this appeal was taken.

The only questions which the bill of exceptions contained in the record bring up for review are those arising on the prayers for instructions to the jury. The main contention of the appellant is, that a vis major caused the car to leave the rails; that the resultant injury was due, therefore, not to negligence, but to an unavoidable accident, which furnished no cause of action; and that upon the evidence adduced by the appellant, the trial Court should have so instructed the jury, as a matter of law. There are some subsidiary propositions which will be better understood after the controlling one has been discussed, and which, for that reason, will be stated and considered later on. It is undoubtedly true that a carrier is not an insurer of the safety of his passengers.

He is bound to use the utmost care and diligence which human foresight can employ. City Pas. Ry. Co. v. Nugent, 86 Md. 356 .

This is the limit and the measure of the duty which he owes to the passenger. If, in spite of the observance of that degree of precaution, an injury happens to the passenger from an act of God or a vis major, no action, in such circumstances, can be maintained. Negligence, and not the mere fact of an injury, is the foundation of the passenger’s right to recover. Direct evidence of negligence is not necessary, because negligence, like any other fact, can be established by the proof of circumstances from which its existence may be inferred.

The relation of passenger and carrier being established, then, if it should appear that the accident occurred from some abnormal condition in the department of actual transportation, the law raises the presumption that the abnormal condition had its origin in, or was referable to, some antecedent or coincident omission of an imposed duty. Such an omission is negligence, and such negligence when producing an injury to the passenger, fastens a respon ³⁹⁴ sibility on the carrier, unless it be satisfactorily shown that that abnormal condition proceeded from some source in no manner attributable to the carrier. This is the principle which the appellant’s first prayer was designed to invoke; and we have now to inquire, whether the form of the prayer and the circumstances of this case, would have warranted the Court in granting it. .The prayer is in these words: “The defendant prays the Court to rule as a matter of law upon the pleadings and evidence in this case, the defendant has by competent evidence proven that the accident in this case was not due to the negligence of the defendant, its employees or agents and that the plaintiff is not entitled to recover.” The Court declined to grant this prayer. It will be observed that the prayer refers to the pleadings and to all the evidence in the case, and then asks the Court to "rule as a matter of law" that the defendant has by competent evidence proven that the accident was not due to the negligence of the defendant.

As the pleadings rely upon several alleged acts of negligence they must be examined before considering the prayer. The first count of the declaration charges that the injury sustained by the appellee was due to the derailment and overturning of the car and its descent down a steep embankment “caused by the negligence of the defendant and its servants.” The second count avers that-the injury happened in consequence of the misconduct and default of the railroad company in negligently'and wrongfully permitting its road-bed and tracks to be out of repair and to be in a broken, defective and dangerous condition; and also by reason of the wrongful act, neglect and default of the employees of the company in charge of the coach or car. The third is substantially a repetition of the second count except in this that it enlarges the averment of negligence by including, not only the employees in charge of the derailed car, but those in control of the tram. It thus appears that there are three distinct imputations of negligence.

The first is the derailment of the car; the second, the broken rail and the neglect and default of the employees in charge of the car; and the third, the broken rail and the neglect and de ³⁹⁵ fault of the employees in charge of the car and in charge of the train. To which of these alleged causes was the accident due ? The prayer asked the Court to rule as a matter of law that the appellant was not answerable at all, and therefore was not liable.for the consequences of any of these asserted acts of negligence, not because the appellee had failed to adduce any legally sufficient evidence to support the declaration, but because the appellant had “by competent evidence proven that the accident was not due to” its negligence. The structure of the prayer is entirely consistent with the theory that the appellee had presented evidence tending to sustain her cause of action.

But in spite of that unexpressed but plainly implied theory it asks a specific ruling, as a matter of law, to the effect that the company had by competent evidence proved that it h&d not been guilty of negligence. The Court was thus requested to take the place of the jury and to determine after balancing conflicting evidence (and there was such evidence) that the testimony-adduced in exculpation of the appellant outweighed that which inculpated* it. We say the structure and import of the prayer are in complete harmony with the theory that some evidence had been offered tending to fasten the charge of negligence upon the appellant, because the Court was not asked to say that no such evidence had been introduced by the appellee, and because the prayer refers to and includes all the evidence in the case, and sets up by way of exculpation, solely and exclusively the facts established, or assumed to have been established, by the appellant. The presumption of negligence arising from an injury to a passenger when the injury is occasioned by an abnormal condition in the department of actual transportation, is evidence sufficient to entitle a plaintiff to recover, if the abnormal condition be not unequivocally referable to a non-actionable accident or to a vis major.

The facts which give rise to such a presumption cannot justify an opposite inference, because inconsistent presumptions cannot spring from or be founded on the same basis. As a presumption is simply an inference or conclusion logically deduced from known data, it is obvious, when con ³⁹⁶ trary or contradictory conclusions are asserted as resulting from the same premises, that one or the other or possibly both must be erroneous. But it is competent for the carrier to show by affirmative evidence that the abnormal condition" which occasioned the injury was referable exclusively to a cause which the law denominates an unavoidable accident or a vis major. When it is satisfactorily established that a vis major occasioned the abnormal condition which produced the injury, then the presumption that the abnormal condition proceeded from negligence, or that it-evidences antecedent negligence, is no longer available.

In no instance, however, can the wrongful act, neglect or default of the employees of a carrier be treated as a vis major; nor can the evidence- tending to establish such act, neglect or default be withdrawn from the consideration of the jury merely because the carrier" has adduced preponderating contradictory evidence. Assuming, but not deciding, that the Court would be justified in ruling as a matter of law that the exculpatory evidence was conclusive as respects the cause which produced the physical condition of the broken rail, still the prayer we are considering could not have been granted unless the Court further ruled and was authorized to rule as a matter of law that the other alleged acts of negligence had been disproved by the appellant, because, as we have already suggested, the prayer is not founded on the theory that no legally sufficient evidence had been adduced by the appellee to support the declaration, but is based wholly upon the assumption that the appellant had proved that the accident was not due to negligence. We may now turn to the evidence and briefly examine it in so far it has relation to the cause of the injury. The train, consisting of a locomotive and tender, a mail car, a'baggage car and two passenger coaches, left Hagerstown on Sunday afternoon, January 3rd, 1904, at four twelve, destined for Baltimore.

The plaintiff and her husband were passengers thereon with tickets to Union Bridge and they occupied seats in the last car. As the train ascended a seventy or eighty-feet grade and was rounding a five degree curve the rear trucks of the ³⁹⁷ rear car left the tracks in a deep cut, but the progress of the train was not checked and the derailed car was carried for four hundred and sixty-two feet over the cross-ties and alongside of the ties until the left-hand wheels, which were outside of the rails as you look eastwardly, fell into a slight washout on the north of the track and the car wrenched loose from the one in front and turning over rolled down the mountain a distance of seventy feet. At the place where the wheels left the track there was found a defective rail. Beginning at a point seventeen feet ten inches from the western end of one of the southern, or inner, rails of the five-degree curve, there was broken out from the inner side a slab thirty-four inches long, tapering to a feather edge at one end, terminating in an abrupt break at the other, of an inch and an eighth thickness in the middle and weighing nine pounds.

The rail was, when new, a sixty-pound rail—that is, it weighed sixty pounds to the yard—and was placed in the track in June, eighteen hundred and eighty-four. It had been in constant service for nearly twenty years and had lost by friction and use about four per cent of its original weight. On the day of the disaster the track inspector had walked over the track twice prior to the accident and had not discovered that there was a defective rail there. Four inches of snow were on the ground.

The track was, to use his own words, “in good condition as far as I could see.” “Everything seemed to