Western Maryland Railroad v. State Ex Rel. Shirk

⁶⁴⁵ McSherry, C. J., delivered the opinion of the Court. This suit was brought in the name of the State of Maryland for the use of the widow and the father of Jacob E. Shirk, deceased, against the Western Maryland Railroad Company to recover damages for the injuries sustained by the equitable plaintiffs as a consequence of the death of Shirk. The death of Shirk is alleged to have been caused by the negligence of the railroad company. The questions that are open for consideration are all brought up by an exception to the Court’s rulings on the prayers presented at the close of the case.

The prayer offered at the conclusion of the plaintiff’s case was too general, Robey v. State, use of Mallory, 94 Md. 67 , and was, therefore, properly rejected. ■ But even if there had been error in refusing to grant that prayer, the right to have the ruling reviewed was waived by the defendant when it proceeded thereafter to introduce evidence on its own behalf. Barabasz v. Kabat, 91 Md. 53 . The facts which must be stated so that the legal principles involved may be understood are as follows : In the latter part of August, eighteen hundred and ninety-four, Jacob E. Shirk and his co-partner, Jacob C. Landis, shipped, under a through bill of lading, from Somerset County, Pennsylvania, to Lphrata in Lancaster County, two car loads of cattle by way of the Baltimore and Ohio, the Western Maryland, the Cumberland Valley and the Philadelphia and Reading railroads. The cars were delivered by the Baltimore and Ohio railroad to the Western Maryland railroad at Cherry Run on August the twenty-first and subsequently, on the same day, with other freight cars were made up into a train to be hauled to Hagerstown for transfer to the Cumberland Valley railroad.

Both Shirk and Landis were entitled to ride free on the freight train which carried the cattle. The train consisted of nine loaded cars and two empty ones and a caboose, the latter being at the end of the train. Next behind the two cattle cars was a Baltimore and Ohio gondola car loaded with steel billets, and following that were two or three other cars and then came the caboose. The train left Cherry Run in the afternoon.

Shirk ⁶⁴⁶ and Landis were in the caboose and both were asleep. ■ When the train had reached a point about ten miles from Hagerstown and whilst running at a speed of twelve miles an hour the front axle of the Baltimore and Ohio gondola car broke about nine inches from the wheel, the axle fell upon the ties derailing some of the cars behind it including the caboose. Besides Shirk and Landis there were two other men in the caboose. When the caboose left the rails some one awoke Shirk and Landis and called to them to jump. Whether the person who gave the warning was one of the crew of the train or not is a disputed matter.

Shirk ran out of the rear door of the caboose and leaped from the end of the platform with his back to the train whilst the train was still in motion, and fell upon his head receiving a severe injury which caused his death on September the first. Landis jumped from the side of the platform and fell on his side. He was not badly hurt but claims that since then he has been suffering from sciatic rheumatism resulting from the fall. Before the train left Cherry Run the cars were inspected by the car inspectors of the defendant, but it is asserted that the inspection was insufficient.

This is one of the controverted questions of fact, and it is a question to be determined by the jury, or by the Judge sitting as a jury, under appropriate instructions. Palmer v. Delaware, &c,, Canal Co. 120 N. Y. 170. The declaration alleges that Shirk was injured and killed “by reason of the insufficiency of an axle of a car attached to”, the freight train upon which he was riding. The undisputed evidence shows that the injury which caused the death was inflicted, not by the broken axle but by Shirk’s falling on his head when he jumped from the moving train.

It is clear that the broken axle caused the derailment of the caboose, and that the derailment induced one of the occupants of that car to awaken Shirk and to suggest to him to jump in order to save himself from injury. It is altogether probable that had he not jumped he would not have been hurt; and it is certain that he would not have jumped if the axle had not broken. If the breaking of the axle was due to ⁶⁴⁷ the negligence of the defendant company in not properly inspecting the gondola car before sending it out in the train, and was not the result of a hidden and undiscoverable defect; and if the deceased jumped, in the circumstances stated, because directed by an employee of the company to do so, then the equitable plaintiff—the widow—would be entitled to recover because whilst the breaking of the axle was not the immediate cause of the death it was the efficient cause, or the cause but for which the death would not have happened. It was for the jury, or the Judge sitting as a jury, to say in view of all the evidence whether negligence had been satisfactorily shown and whether the deceased had exercised proper care in jumping from the moving train.

The prudence of a passenger’s leaving a moving train to escape an apparent danger must be judged by the circumstances as they appeared to him at the time and not by the result. St. L. & S. F. R. Co. v. Murray, 55 Ark. 248 , 16 L. R. A. 787. The Court could not rule as matter of law that there was no evidencs of negligence. The deceased was a passenger. 5 Am. & Eng.

Ency. L. (2d ed.) 508, and note 5. He was not, however, entitled to the same absolute and extraordinary degree of care as to his safety which a common carrier is bound to exercise , towards a traveller on a regular passenger train. “Where a drover is riding on a pass on a freight train the carrier is not bound to the same absolute or extraordinary degree of care as to his safety as it is to a passenger for hire riding pursuant to a ticket on regular passenger trains, for it is impossible for the company to care as well for a person riding on an ordinary freight train as it is for one riding on a regular passenger train.” 4 Elliott on Railroads, sec. 1606.

This proposition is self evident. The risks and dangers are much greater and more numerous upon a freight than upon a passenger train, and the same precautions in the way of running the former and in constructing the cars used therein that are necessary in respect to the latter cannot, in the very nature of things, be observed. This is a condition which every one who rides upon a freight train must be held to appreciate and under ⁶⁴⁸ stand. Chic. & Alton R. Co. v. Arnold, 144 Ill. 270 -272.

In sec. 1629, 4 Elliott on Railroads, the author after speaking of the degree of care which a carrier owes its passenger proceeds : “But we do not mean that its duties and' the precautions it must take are absolutely the same with respect to the operation of (freight) trains as with respect to regular passenger trains. As to its road-bed,- bridges and the like, it would seem that the duty is absolutely the same, but it is obvious that the.risk is greater in riding upon freight trains, that the same appliances cannot be used and' that the same speed and comparative freedom from sudden jerks and the like cannot be attained. ■ The duty of- the company is therefore modified by the necessary difference between freight and passenger trains and the manner in which they must be operated, and while the general rule that the highest practicable degree of care must be exercised holds good, the nature of the train and the necessary difference in its mode of operation must be considered, and the company is bound to exercise only the highest degree of care that is usually and practically exercised and consistent with the operation of trains of that nature.” “In the operation of freight trains, the primary object is the carriage of freight, and the appliances used are, and are known by the passengers to be adapted to that business, and the carrier is not, when transporting passengers thereon, held to a degree of care in its operation that would destroy the use of the train for its primary purpose.” Ch. & Alt. R. Co. v. Arnold, supra. - Shirk having been a passenger, but a passenger on a freight train,'the usual presumption of negligence obtaining when a passenger is injured by some defect in the road-bed, or in the means-or instrumentalities of transportation, wculd apply in a modified way, and the modification would be due to the difference in the make-up of a freight train and to the difference in the method and circumstances of its operation. The presumption of negligence; above alluded to, is a rebuttable presumption and unless the plaintiff’s evidence itself destroys the presumption or furnishes no basis for it to rest on, it must be ⁶⁴⁹ overcome by the defendant, and the credibility of the testimony adduced by the latter is for the jury, or the Judge sitting without a jury to determine.

As it is the duty of the carrier to use safe appliances, so it is a further duty to ascertain whether foreign freight cars delivered to it for movement over its line are safe and free from defects before suffering them to go over its road. This duty can only be discharged by properly inspecting such cars. The extent and thoroughness of the inspection must, of necessity, depend upon circumstances. The same minuteness is not possible in every instance.

It must be as thorough as possible regard being had to the nature of the business and the hazards involved. It need not be scientific, it must be practical. The question is not whether, according to evidence of a scientific or speculative nature, a defect might have been detected, but whether practically and by the use of ordinary and reasonable care it ought to have been observed. Stokes v. Eastern Counties R. Co., 2 F. & F. 691.

The rigid rule laid down in Shop v. Grey, 9 Bing. 457, to the effect that the earlier is bound to furnish a road-worthy conveyance and if the event proves that it was not so the carrier must suffer the consequences, though as diligent in making an inspection of the coach as was possible without taking it apart was distinctly repudiated in England. Readhead v. Midland R. Co., L. R. 4 Q. B. 379. This same rule though at first followed in New York, Alden v. N. Y. C. R. Co., 26 N. Y. 102 , was subsequently rejected in McFadden v. N. Y. C. R. Co., 44 N. Y. 478 . It is now well settled that a carrier of persons is not liable for latent defects in its appliances which could not be discovered either in the process of manufacture or subsequently by the application of that skill and care which is required of such carriers. 5 Am. & Eng.

Ency. of Law, 528, and cases in note 4. Thus in Richardson v. Great Eastern R. R. Co., L. R., 1 C. P. D. 342, it appeared that the plaintiff, who was a passenger on a passenger train of the defendant was injured in a collision between the train upon which he was riding and another train and that the collision was caused by ⁶⁵⁰ the breaking of an axle under a foreign freight car attached to the train which collided with the passenger train. The foreign freight car had been inspected and the tests usually-employed by railroads were applied before it was sent out and the defect was not revealed. In the