Bartol, J.,
delivered the following opinion, in which Cochran, J. concurred :
In my opinion the appéllants have no good cause to com-' plaiu of the ruling of the Superior Court in this case.
Nothing is better settled, than that a judgment will not be reversed on account of the rejection of prayers, even though correct in themselves, if the instructions given to the jury are correct, covering the whole case, and giving the law to the jury, as favorably for the appellant as he is entitled to ask. 3 Gill, 481, 482. 11 Md. Rep., 451. 14 Md. Rep., 444. 13 Peters, 191.
That rule seems to me to he conclusive of the present appeal. The appellee, who was the plaintiff below, was a passenger on the railroad of the appellants, in the afternoon of the 7th of duly 1856. The train ran off the track at a switch, used occasionally by dirt trains, and the plaintiff was seriously injured by the accident, and instituted this suit to recover damages for the injury.
The evidence shows that the train was thrown off by the rail on the main track being displaced at the switch. It appears also from the evidence that the switch was at or sear a curve, and on approaching it, in the direction th© [282]*282appellee was traveling, the indicator could be seen by the engineer, some of the witnesses say at the distance of one hundred and fifty yards, others say two hundred and fifty yards; and that a train running at the usual speed of twenty-five miles an hour could be stopped in the space of from three'hundred to'five hundred yards, or according to the testimony of some of the witnesses, of one thousand yards. It is clear however from all the testimony, that in the position this switch was placed, the indicator could not be seen by the engineer upon a passing train, in time to prevent an accident, even if the indicator showed the misplacement of the switch. There is evidence in the cause showing that in this instance the lever of. the switch, or indicator, was in the position it would have occupied had the track been safe, and therefore when seen by the engineer from the train, gave no sign of the danger. How it got into that position is not explained by the testimony.
*In this state of facts the Superior Court instructed the jury substantially as follows:
1st. That the injury to the plaintiff was presumptive evidence of negligence on the part of the defendants, and it was incumbent on them to prove that they were not negligent, in order to discharge themselves from liability.
2nd. That it was a question of fact for the jury to determine from all the evidence in the cause, whether the injury to the plaintiff arose from any neglect on the part of the defendants or their agents, and if the jury should, find that the injury in question was the result of an accident, or act against which human care and foresight could not guard, and was not the result of negligence in any degree, on the part of the defendants, then the plaintiff was not entitled to. recover.
3rd. That in determining these questions, the jury were to have regard to the character of railway transportation.
And 4th. That if they found there was no person in charge of the switch, and that the presence of such person might have prevented the accident; still the plaintiff is not, for that reason, entitled to recover; unless the jury should [283]*283find that the want of such switch-tender was an act of negligence on the part of the defendants.
I have stated the substance of the instruction, omitting the formal parts, which properly left the facts to be found by the jury; and, in my judgment, there is no part of them of which the appellants have any right to complain.
The first proposition T do not understand to he controverted. The case of Stokes vs. Saltonstall, 13 Peters, 181, and Stockton vs. Frey, 4 Gill, 414, conclusively establish the law; that in such ease the occurrence of the accident is prima facie evidence of negligence on the part of the defendants, throwing upon them the onus of rebutting the presumption, by proving there was no negligence. Of course that can he done only by proving the facts and circumstances explaining the cause of the accident, showing it to be such as could not have been guarded against by the utmost care and diligence; or in other words by proving, in the language of Chief Justice Shaw, “the most exact care and, diligence, not only in tbe management of the trains and cars, but also in tbe structure and care of tbe track, and in all the subsidiary arrangements necessary to tbe safety of the passengers.” 4 Cushing Rep., 402.
This is precisely the rule laid down in the Court’s instruction here, as embodied in the 2nd and 3rd proposition above stated. The jury were told that if the injury was the result of an accident, or an act against rvhich human care and foresight could not guard, and was not in any degree the result of negligence, then the plaintiff was not entitled to recover. Much objection was made by the appellants in the argument, to this part of the instruction, upon the ground that it extended their liability beyond the obligations imposed on them by law, and would have the effect of destroying altogether the transportation of passengers by railroads.
But the very words of this instruction were used by Sir James Mansfield, C. J., in the case of Christie vs. Griggs, 2 Camp. R. 81; whore, in speaking of the obligation for, [284]*284the safe carriage of passengers, he says: “His undertaking, as to them went no further than this, that as far as human care and foresight could go, he would provide for their safe conveyance.” This language is cited with approbation by the Court of Appeals in Stockton vs. Frey, and in that case the defendant had asked for an instruction in the words used by the judge in this case, which the Court of Appeals said it was error to refuse. It is a little remarkable that the instruction complained of here, as unduly enlarging the defendant’s liability, was considered by the Court in Stockton vs. Frey, as an important qualification to the plaintiff’s first prayer in that case, materially beneficial to the defendant.
But apart from the direct sanction to the language hore employed, given in the case of Stockton vs. Frey, I am of opinion as the result of the authorities cited, as well as from sound reason and public policy, that the measure of responsibility of railroad companies for the safe carriage of passengers, is correctly stated by the Superior Court in this case, especially when accompanied with the important qualification, that in passing upon the question of negligence, “ the jury were to have regard to the character of railway transportation;” necessarily subject to greater perils and risks than attended the old, slower and simpler modes of conveyance.
With reference to the last part of the instruction, relating to the switch, which in this case was the cause of the accident, the appellants have no just cause to complain; the instruction, in my opinion, was more favorable to them than they were entitled to ask. The Court left it to the jury to decide whether the absence of a switch-tender at that place was an act of negligence on the part of the railroad company.
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Bartol, J.,
delivered the following opinion, in which Cochran, J. concurred :
In my opinion the appéllants have no good cause to com-' plaiu of the ruling of the Superior Court in this case.
Nothing is better settled, than that a judgment will not be reversed on account of the rejection of prayers, even though correct in themselves, if the instructions given to the jury are correct, covering the whole case, and giving the law to the jury, as favorably for the appellant as he is entitled to ask. 3 Gill, 481, 482. 11 Md. Rep., 451. 14 Md. Rep., 444. 13 Peters, 191.
That rule seems to me to he conclusive of the present appeal. The appellee, who was the plaintiff below, was a passenger on the railroad of the appellants, in the afternoon of the 7th of duly 1856. The train ran off the track at a switch, used occasionally by dirt trains, and the plaintiff was seriously injured by the accident, and instituted this suit to recover damages for the injury.
The evidence shows that the train was thrown off by the rail on the main track being displaced at the switch. It appears also from the evidence that the switch was at or sear a curve, and on approaching it, in the direction th© [282]*282appellee was traveling, the indicator could be seen by the engineer, some of the witnesses say at the distance of one hundred and fifty yards, others say two hundred and fifty yards; and that a train running at the usual speed of twenty-five miles an hour could be stopped in the space of from three'hundred to'five hundred yards, or according to the testimony of some of the witnesses, of one thousand yards. It is clear however from all the testimony, that in the position this switch was placed, the indicator could not be seen by the engineer upon a passing train, in time to prevent an accident, even if the indicator showed the misplacement of the switch. There is evidence in the cause showing that in this instance the lever of. the switch, or indicator, was in the position it would have occupied had the track been safe, and therefore when seen by the engineer from the train, gave no sign of the danger. How it got into that position is not explained by the testimony.
*In this state of facts the Superior Court instructed the jury substantially as follows:
1st. That the injury to the plaintiff was presumptive evidence of negligence on the part of the defendants, and it was incumbent on them to prove that they were not negligent, in order to discharge themselves from liability.
2nd. That it was a question of fact for the jury to determine from all the evidence in the cause, whether the injury to the plaintiff arose from any neglect on the part of the defendants or their agents, and if the jury should, find that the injury in question was the result of an accident, or act against which human care and foresight could not guard, and was not the result of negligence in any degree, on the part of the defendants, then the plaintiff was not entitled to. recover.
3rd. That in determining these questions, the jury were to have regard to the character of railway transportation.
And 4th. That if they found there was no person in charge of the switch, and that the presence of such person might have prevented the accident; still the plaintiff is not, for that reason, entitled to recover; unless the jury should [283]*283find that the want of such switch-tender was an act of negligence on the part of the defendants.
I have stated the substance of the instruction, omitting the formal parts, which properly left the facts to be found by the jury; and, in my judgment, there is no part of them of which the appellants have any right to complain.
The first proposition T do not understand to he controverted. The case of Stokes vs. Saltonstall, 13 Peters, 181, and Stockton vs. Frey, 4 Gill, 414, conclusively establish the law; that in such ease the occurrence of the accident is prima facie evidence of negligence on the part of the defendants, throwing upon them the onus of rebutting the presumption, by proving there was no negligence. Of course that can he done only by proving the facts and circumstances explaining the cause of the accident, showing it to be such as could not have been guarded against by the utmost care and diligence; or in other words by proving, in the language of Chief Justice Shaw, “the most exact care and, diligence, not only in tbe management of the trains and cars, but also in tbe structure and care of tbe track, and in all the subsidiary arrangements necessary to tbe safety of the passengers.” 4 Cushing Rep., 402.
This is precisely the rule laid down in the Court’s instruction here, as embodied in the 2nd and 3rd proposition above stated. The jury were told that if the injury was the result of an accident, or an act against rvhich human care and foresight could not guard, and was not in any degree the result of negligence, then the plaintiff was not entitled to recover. Much objection was made by the appellants in the argument, to this part of the instruction, upon the ground that it extended their liability beyond the obligations imposed on them by law, and would have the effect of destroying altogether the transportation of passengers by railroads.
But the very words of this instruction were used by Sir James Mansfield, C. J., in the case of Christie vs. Griggs, 2 Camp. R. 81; whore, in speaking of the obligation for, [284]*284the safe carriage of passengers, he says: “His undertaking, as to them went no further than this, that as far as human care and foresight could go, he would provide for their safe conveyance.” This language is cited with approbation by the Court of Appeals in Stockton vs. Frey, and in that case the defendant had asked for an instruction in the words used by the judge in this case, which the Court of Appeals said it was error to refuse. It is a little remarkable that the instruction complained of here, as unduly enlarging the defendant’s liability, was considered by the Court in Stockton vs. Frey, as an important qualification to the plaintiff’s first prayer in that case, materially beneficial to the defendant.
But apart from the direct sanction to the language hore employed, given in the case of Stockton vs. Frey, I am of opinion as the result of the authorities cited, as well as from sound reason and public policy, that the measure of responsibility of railroad companies for the safe carriage of passengers, is correctly stated by the Superior Court in this case, especially when accompanied with the important qualification, that in passing upon the question of negligence, “ the jury were to have regard to the character of railway transportation;” necessarily subject to greater perils and risks than attended the old, slower and simpler modes of conveyance.
With reference to the last part of the instruction, relating to the switch, which in this case was the cause of the accident, the appellants have no just cause to complain; the instruction, in my opinion, was more favorable to them than they were entitled to ask. The Court left it to the jury to decide whether the absence of a switch-tender at that place was an act of negligence on the part of the railroad company. Looking at the facts of this case, as disclosed by the evidence, I should have little, hesitation in declaring, as, matter of law, that the failure of the company to have a switch-tender at that place, was an act of gross and culpable negligence, which would render the defendant liable for the [285]*285consequences of sucli an accident as occurred in this case, if the jury should find that the presence of a switch-tender might have prevented it. Since the introduction of indicators at switches on railways, it could hardly be successfully contended that a railroad company could escape legal responsibility for the consequences of neglecting to provide so important and useful a safeguard against accidents. But what is the use of an indicator at a switch, which cannot be seen by tbe engineer in time to provide against the consequence of its being out of place ? If a railroad company, for its own convenience, makes a switch at a place where an indicator is of no use, it would seem to me that even ordinary care and prudence would require them to employ at such a place, a person to attend to the proper adjustment of the switch. In this case the question of negligence in this particular was left to the jury, and furnishes no ground for a reversal of the judgment on this appeal.
The view I have taken of this ease, renders it unnecessary to discuss the prayers offered by the appellants, because the same propositions being substantially given to tbe jury, in an instruction covering tbe whole case, tbeir refusal, as I have said, would be no cause of reversal.
I consider the first prayer of. the appellants as asserting tbe same measure and degree of obligation on tbe part of tbe company as that contained in the Court’s instruction. All that it was proper for tbe Court to do in tbis case, was to furnish to the jury for their guide, the legal rule or standard hy which the obligation of the company was to he determined — that is, to prescribe the degree of care and diligence required hy law, and then to leave the fact of negligence, or want of care, for tbe jury to decide from tbe evidence in tbe cause; and it seems to mo, notwithstanding all that bas been urged in tlie argument by tbe appellants’ counsel, that tbe rule in this respect, prescribed by the Court’s instruction, is quite as definite and certain as that contained in the first prayer.
The second prayer of tbe defendants was properly refused, [286]*286because there was no evidence upon which it could be based. The bill of exceptions contains no testimony tending to show any wrongful act on the part of any one, not connected with the defendants, contributing to the accident by displacing the switch. But if I am in error in this, still the-defendants had the benefit of that defence, under the Court’s-instruction, which exempted them from liability for any act against which human care and foresight could not guard; and farther than that they were not entitled to exemption.
Finding no error in the ruling of the Superior Court, I think the judgment ought to be affirmed.