Baltimore & Ohio Railroad v. State ex rel. Mahone

63 Md. 135, 1885 Md. LEXIS 72

• Court: Court of Appeals of Maryland
• Decided: February 6, 1885
• Status: Published

Opinion

Robinson, J.,

delivered the opinion of the Court.

The Court was right in this case, we think, in leaving the question of negligence on the part of the appellant to the finding of the jury. The deceased, a colored woman, about forty-seven years of age, had purchased a ticket, from Mount Winans to Baltimore City. Mount Winans, is a third class station at which the way trains stop on signal by the conductor or the ticket agent. At this station, there are two platforms, — one on the north side ■of the track where the ticket office is situated, for passengers going towards Washington, and the other, on the south side, for passengers going towards Baltimore. The deceased was sitting on a bench outside of the ticket office waiting for the way train • then overdue; and while sitting there, the whistle of an approaching train was heard. The ticket agent turning to her said, “ Come old lady, your train is coming, come across,” and while in the act oí crossing the track, she was run over and killed by the engine and cars of the appellant.

It is insisted, there was no evidence from which the jury could reasonably find negligence on the part of the appellant, and the Court below ought not therefore to have submitted the question to the jury. If the case rested solely on the evidence offered by the appellant, there might be some ground for this contention. This evidence shows the distance between the two platforms is twenty-tioo feet■ — that when Story, the ticket agent, directed the deceased to cross the track to the opposite platform, the train had just turned the curve in the road, a point at least a half mile from the station, that after getting almost across, she threw up her hands and exclaimed, “ my bundle, my bundle,” — that Story told her to “ come across,” he would get the bundle, instead of doing so, however, she turned and went hack to the office to look after the bundle — that going back she met the witness Williams between the tracks who told her she “ hadn’t time to go bach and get the bundle and get over before the train comes.” In spite of this additional warning, she went hack to the office, and afterwards attempted to cross the track in front of the approaching train and was killed. All the witnesses on the part of the appellant, and the witness Ware, on the part of the appellee, say she had time, ample time, to have crossed the track when Story first notified her.

There is evidence, however, on the part of the appellee, from which it may he inferred that the deceased hardly had time to do so safely — that Story himself did not start across until the train had passed the whistling post, which is only about one-quarter of a mile, from the station — and that when he got across, she was only three or four feet behind him. In directing her to cross the t’rack for the purpose of taking the train, it was his duty to see that she had time to do so in safety, and if there was negligence on his part in this respect, in consequence of which the deceased was billed, the railway company is responsible. And as there is a conflict in the testimony upon this point, the Court was right in leaving the question to the jury.

Nor do we see any objection to the appellee’s second prayer, as modified by the Court. In actions of this kind, the plaintiff must, it is true, prove not only the injury, hut ■also the negligence of the defendant. But there may he cases in which the proof of the injury under certain circumstances, necessarily raises a presumption of negligence on the part of the defendant. The cases of Christie vs. Griggs, 2 Camp., 79; Stokes vs. Saltonstall, 13 Peters, 181; Stockton vs. Frey, 4 Gill, 406; Carpue vs. London & Brighton R. R. Co., 5 Q. B., 749, (48 E. C. L.,) and Skinner vs. London R. R. Co., 5 Exch., 786, are familiar illustrations of the application of this principle. These cases proceed on the ground, that the carrier, is hound to exercise the greatest care and diligence, in every thing that concerns, the safety of passengers; and if one is injured by the breaking down or upsetting of* the vehicle used in the transportation, or by the colliding of one train with another, or by the train running off the track, from some defect in the road-bed, in these and in other like cases, the evidentiary facts in themselves create a presumption of negligence on the part of the carrier. Under such circumstances, the carrier must show that the accident happened in spite of the exercise by him and his servants, of the-greatest degree of care and diligence, practicable under the circumstances. ' In other words, although the burden of proof is on the plaintiff to show that the injury was. occasioned by the negligence of the defendant, yet he discharges this burden and makes out a prima facie case, by showing that the accident happened through the failure of some of the means used by the carrier in making the transit.

It was not necessary in this case to create the relation of carrier and passenger, that the deceased should actually have entered the train; if she had purchased a ticket, and was crossing the track by and under the direction of the ticket agent, for the purpose of taking the train, she is to-be considered as a passenger, and as such entitled to the rights and protection of a passenger; and it was the duty of the agent so far as human care and prudence could, to. guard against exposing her to danger. And if in the act of crossing the track under such circumstances, she was. without any fault on her part, run over and killed by the-engine and cars, it is but reasonable to presume, that her death was occasioned by the negligence of the agent of the company. And so the Court instructed the jury. The Court did not say that the mere proof of the fact that she was killed, while crossing the track, was in itself sufficient to raise a presumption of negligence against the appellant, but in addition to this fact, the jury were required to find that she had purchased a ticket and was crossing the track under the direction of the agent of the company for the purpose of taking the train, and while in the act of crossing, she was without any negligence on her part run over and killed by the train of the appellant. The finding of these facts, was in our opinion sufficient to make out a prima facie case of negligence against the railway company.

We come now to the question of damages as presented by the appellant’s sixth prayer. This suit is brought under secs. 1 and 2 of Art. 65 of the Code, which provide that in “every such action, the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought.”

The plaintiffs are a married daughter, and two sons, all of whom are over twenty-one years of age. In Balto. & Ohio R. R. Co. vs. State, use of Hauer, et al., 60 Md., 449, it was held not to be necessary to prove that the persons described in the statute, had a claim upon the deceased for support or services which amounted to a legal right, but that proof of a reasonable expectation of pecuniary benefit or advantage from a continuance of the life of the person killed, was sufficient to support the action.

hfow in this case, the proof shows that the deceased-made her permanent home with her daughter Martha, one of the plaintiffs — that she attended to the house-work and looked after the children, while the daughter was away at work — that these services, enabled the daughter to work out constantly, and when so at work she earned six dollars a week, and that since her mother’s death, she had not been able to go out and' work, because she had no onp to take care of the house and children.

It may not be an easy matter, to lay down a fixed and definite rule by which compensation is to be measured in actions of this kind. The statute provides the jury may give such damages as they may think proportioned to the injury, but it does not prescribe in terms on what principle the damages are to be assessed. It may however he considered as settled law, that damages are not to he given as a solatium for grief or mental suffering on the part of the relatives of the deceased. This was decided' in the leading case of Blake vs. The Midland Railway Company, 18 Q. B., 93, upon the construction of the Statute of 9 and 10 Vic., chap. 93, known as Lord Campbell’s Act, from which the provisions in our Code are almost a literal transcript.

It is also well settled, that the claim for damages must be founded on pecuniary loss, actual or expected, suffered by the persons described in the statute. Franklin vs. South Eastern R. R. Comp., 3 Hurl. & Nor., 211. The right to maintain the action, is therefore based on the pecuniary interest of the plaintiffs in the life of the person killed and the value of such interest is the measure by which damages are to be allowed. If so, then the services rendered by the mother in this case, is the pecuniary benefit which the daughter had a right to expect from a continuance of her mother’s life.

And the value of such services under the circumstances, was the measure by which damages were to be assessed by the jury. Not what the daughter might earn by going out to work, as contended by the appellees, because by getting some one to perform the services rendered by the mother, to attend to the house and her children, she may still be able to go out and work.

The sixth prayer of the appellant, which asked the Court to instruct the jury, that in assessing the damages, they must not take into account, the money earned by the daughter by her own labor, but must confine themselves to the value of the services rendered by the mother, as if they had been rendered by any other person, ought to have been granted.

As to the two sons, John and James, there is no evidence legally sufficient to warrant the jury in finding they had sustained any pecuniary loss, actual or in expectation, from the death of their mother. The proof is, that John is twenty-six years old, is married, and has one child; and James is twenty-eight years old, married, and has two ■children. The mother, although she made her home with her daughter Martha, was in the habit of assisting in nursing the sick members of her two sons’ families. How cften she went, how long she remained, and what was the value of such services, no where appears. Nor is there any ■evidence to show that either of them, before or after the death of their mother, was obliged to employ some one to nurse in case of sickness. There is no proof then of pecuniary benefit or pecuniary loss. To attempt to assess ■damages under such circumstances, would he to indulge in mere conjecture and speculation, — mere guess work at the best.

In Dalton vs. South Eastern Railway Co., 93 Eng. C. L., 296, and Franklin vs. South Eastern Railway Co., 3 Hurl. & Nor., 211, relied on by the appellees, the proof was altogether of a different character. In Dalton’s Case, the son who was unmarried, had been in the habit of making a visit to his parents once a fortnight, for the last seven or eight years, and taking them on these occasions, presents of tea, sugar, and other provisions, amounting in the whole to twenty pounds a year, and it was held, that the jury were warranted in inferring, that the father had such a reasonable expectation of pecuniary benefit from the continuance of his son’s life, as to entitle him to recover damages under the statute. So in Franklin’s' Case, the father had been employed to carry up coals to the ward of the hospital, for which he was paid 3 s. 6 d. a week, hut in consequence of ill health, the son had for sometime performed the work for his father. As to whether there was any evidence to show that the father had a reasonable expectation of pecuniary benefit from the continuance of his son’s life, Pollock, C. B., saidr “ There was. The plaintiff was old and getting infirm) the son young, earning good wages, and apparently well disposed to assist his father, and in fact he had so assisted him to the value of 3 s. 6 d. a week.”

(Decided 6th February, 1885.)

In this case, there is no proof that either of the sons, had a reasonable expectation of pecuniary benefit from the continuance of the mother’s life, and the Court ought to have granted the appellant’s eighth prayer.

As to the fifth and ninth prayers of the appellant, it is sufficient to say, that if Story, the agent, gave the deceased ample notice to have crossed the track in safety— and after getting half-way across, she turned and went back to the ticket office to look after her bundle, and did so against the agent’s directions, and then against the warning of the witness Williams, attempted to cross the track, in consequence of which she was killed, her death, under such circumstances, resulted from her own negligence, and the plaintiffs were not entitled to recover. As the case will be remanded, an instruction can he prepared in conformity with these views. We see no objection to the several prayers granted by the Court at the instance of the appellees, so far as they apply to the right of action of the daughter Martha. But there was error in refusing to grant the seventh and eighth pray'ers of the appellant, .and the judgment must therefore he reversed.

Judgment reversed, and new trial awarded.