Arvey, J.,
delivered the opinion of the Court.
This action was brought by the appellant against the appellee to recover for personal injuries received, alleged to have been caused by the culpable negligence of the defendant’s agents, while engaged in running a train of cars over its road. The verdict was for the defendant, and the plaintiff has appealed; and tbe supposed errors of which he complains, and which he seeks by this appeal to have corrected, are involved in the Court’s refusal to grant certain prayers offered by him, and in granting the prayers offered by the defendant.
The general question in the case is, by whose negligence was tbe accident caused that resulted in the injuries to the plaintiff? Was it that of the defendant, under such circumstances as to render it liable therefor, or was it that of the plaintiff himself, under such circumstances as to preclude his right to recover, even if there was negligence on the part of the defendant, co-operating to produce the casualty ? The action is resisted upqn the ground that the injuries complained of were the consequence of the plaintiff’s own negligence, and that, therefore, he is not entitled to recover.
In cases where the evidence implicates the plaintiff as well as the defendant in occasioning the accident, in order to disentitle the former to recover, it should appear that bis negligence so contributed to the production of the injury that, without such negligence on his part, the misfortune would not have happened; nor will he be dis-entitled if the defendant might, by the exercise of reasonable care on his part, have avoided the consequences of the plaintiff’s neglect or carelessness. This proposition is maintained by the case of Tuff vs. Warman, 2 C. B., N. S., 740; S. C. 5 C. B., N. S., 585, and which has been approved by this Court on several occasions. North. Cent. R. Co. vs. Price, 29 Md., 420; North. [576]*576Cent. R. Co. vs. Gies, 31 Md., 357; Lewis vs. Balto. & Ohio R. R. Co., 38 Md., 588. But, before any question of contributory negligence by the plaintiff becomes of importance in the case, evidence must be furnished of the culpable negligence of the defendant. And the first inquiry, therefore, is, whether there be any such evidence furnished by the plaintiff as entitled him to have his case submitted to the finding of a jury; for by solving this question we can best determine whether there was error committed by the Court below in its rulings in respect to the prayers offered by the parties.
In cases like the present, there is no presumption of negligence raised against the defendant from the simple fact of the happening of the accident; and the onus is upon the .plaintiff to show affirmatively that there was such negligence on the part of the defendant as to give the right of action. Where, however, there is evidence of negligence by the defendant, and the right to maintain the action is resisted upon the theory that the plaintiff has, by his own negligence, so far contributed to the production of the injury as to disentitle him to recover, there, the onus probandi of such defence is upon the defendant. North. Cent. R. Co. vs. Geis, 31 Md., 367; Oldfield vs. N. Y. & Harlem R. R. Co., 3 E. D. Smith, 103, affirmed in 14 N. Y., 310; Railroad Co. vs. Gladmon, 15 Wall., 407. Very generally, however, the proof offered to show the negligence of the defendant, discloses the conduct of all the parties concerned, and enables the Court or the jury to determine which of the parties was or were really in fault. And that is the case, we think, in this instance.
The accident happened on the morning of the 4th of February, 1871, on the branch road of the defendant, leading from Perryville to Port Deposit; and occurred but [577]*577a short distance from the depot at the former place, the point at which the branch road intersects the main line. The plaintiff himself proved, that, just before the accident, he had left at the depot the train on the main line, bound for Philadelphia, and walked across the track of the branch road leading to Port Deposit, and got into the highway and pursued it until it crossed the Port Deposit branch road a short distance from the depot, from which the trains for Philadelphia, and those for Port Deposit usually started; that he knew that the Philadelphia train would start in a few minutes — as soon as it had changed passengers and taken in water — but did not know that any train was about to start on the branch road for Port Deposit. He knew that trains ran on the branch road, but did not know at what time they started. That at or from the crossing, no engine or train was visible on the branch road, and he there went upon the track and walked up between the rails in the direction of the place where he was going to work, as it was the best and most direct way ; and that, when he had proceeded on the track about thirty-three yards above the crossing where he came upon the track, he was struck by an engine, drawing a train of cars, which came up behind him, on its way to Port Deposit; that he was knocked from the track, and badly injured ; and that, until he was struck and injured, he did not know or suspect that any engine or cars were approaching, or that he was in any danger. He further proved, that he heard a whistle soon after he went upon the track of the railroad at the crossing, and turning partly around, looked over his shoulder and saw the Philadelphia train in motion on the main track, and was satisfied that the noise proceeded from that train, the engine of which was starting and blowing its whistle; and the subsequent continuing whistles, ivhich he heard, he supposed proceeded from the same engine; and knowing that he was not upon any part of the main track, he felt [578]*578no alarm ; and other persons, who saw him upon the track in front of the Port Deposit train, proved that he was passing leisurely along, with his back to the approaching train, apparently unconscious of danger. He further proved, that he did not turn entirely around, nor sufficiently so to see the approaching train on the track upon which he was walking. This is the plaintiff’s own statement of the occurrence.
It was further proved that tlie trains on the main and branch road started from the depot about the same time, and that whistles were sounded from both trains at the time of starting. It was also proved that the crossing, the point where the plaintiff went upon the track of the branch road, was not in sight from the place where the train started ; and that it was not until proceeding around the curve some twenty yards from the depot, and sixty yards from the crossing, that the track at and beyond the crossing to the place where the plaintiff was struck, •could be plainly seen.
It was also proved by the engineer and fireman on the train, that all usual and reasonable precautions were taken to avoid the accident. That the engine was proceeding very slowly when the plaintiff was first discovered on the track ; that the plaintiff was well known to one of the witnesses, the fireman, and was known to be a man of good sense, and that he could hear ; and that it was supposed that he would leave the track, as he easily could have done, before the train reached him.
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Arvey, J.,
delivered the opinion of the Court.
This action was brought by the appellant against the appellee to recover for personal injuries received, alleged to have been caused by the culpable negligence of the defendant’s agents, while engaged in running a train of cars over its road. The verdict was for the defendant, and the plaintiff has appealed; and tbe supposed errors of which he complains, and which he seeks by this appeal to have corrected, are involved in the Court’s refusal to grant certain prayers offered by him, and in granting the prayers offered by the defendant.
The general question in the case is, by whose negligence was tbe accident caused that resulted in the injuries to the plaintiff? Was it that of the defendant, under such circumstances as to render it liable therefor, or was it that of the plaintiff himself, under such circumstances as to preclude his right to recover, even if there was negligence on the part of the defendant, co-operating to produce the casualty ? The action is resisted upqn the ground that the injuries complained of were the consequence of the plaintiff’s own negligence, and that, therefore, he is not entitled to recover.
In cases where the evidence implicates the plaintiff as well as the defendant in occasioning the accident, in order to disentitle the former to recover, it should appear that bis negligence so contributed to the production of the injury that, without such negligence on his part, the misfortune would not have happened; nor will he be dis-entitled if the defendant might, by the exercise of reasonable care on his part, have avoided the consequences of the plaintiff’s neglect or carelessness. This proposition is maintained by the case of Tuff vs. Warman, 2 C. B., N. S., 740; S. C. 5 C. B., N. S., 585, and which has been approved by this Court on several occasions. North. Cent. R. Co. vs. Price, 29 Md., 420; North. [576]*576Cent. R. Co. vs. Gies, 31 Md., 357; Lewis vs. Balto. & Ohio R. R. Co., 38 Md., 588. But, before any question of contributory negligence by the plaintiff becomes of importance in the case, evidence must be furnished of the culpable negligence of the defendant. And the first inquiry, therefore, is, whether there be any such evidence furnished by the plaintiff as entitled him to have his case submitted to the finding of a jury; for by solving this question we can best determine whether there was error committed by the Court below in its rulings in respect to the prayers offered by the parties.
In cases like the present, there is no presumption of negligence raised against the defendant from the simple fact of the happening of the accident; and the onus is upon the .plaintiff to show affirmatively that there was such negligence on the part of the defendant as to give the right of action. Where, however, there is evidence of negligence by the defendant, and the right to maintain the action is resisted upon the theory that the plaintiff has, by his own negligence, so far contributed to the production of the injury as to disentitle him to recover, there, the onus probandi of such defence is upon the defendant. North. Cent. R. Co. vs. Geis, 31 Md., 367; Oldfield vs. N. Y. & Harlem R. R. Co., 3 E. D. Smith, 103, affirmed in 14 N. Y., 310; Railroad Co. vs. Gladmon, 15 Wall., 407. Very generally, however, the proof offered to show the negligence of the defendant, discloses the conduct of all the parties concerned, and enables the Court or the jury to determine which of the parties was or were really in fault. And that is the case, we think, in this instance.
The accident happened on the morning of the 4th of February, 1871, on the branch road of the defendant, leading from Perryville to Port Deposit; and occurred but [577]*577a short distance from the depot at the former place, the point at which the branch road intersects the main line. The plaintiff himself proved, that, just before the accident, he had left at the depot the train on the main line, bound for Philadelphia, and walked across the track of the branch road leading to Port Deposit, and got into the highway and pursued it until it crossed the Port Deposit branch road a short distance from the depot, from which the trains for Philadelphia, and those for Port Deposit usually started; that he knew that the Philadelphia train would start in a few minutes — as soon as it had changed passengers and taken in water — but did not know that any train was about to start on the branch road for Port Deposit. He knew that trains ran on the branch road, but did not know at what time they started. That at or from the crossing, no engine or train was visible on the branch road, and he there went upon the track and walked up between the rails in the direction of the place where he was going to work, as it was the best and most direct way ; and that, when he had proceeded on the track about thirty-three yards above the crossing where he came upon the track, he was struck by an engine, drawing a train of cars, which came up behind him, on its way to Port Deposit; that he was knocked from the track, and badly injured ; and that, until he was struck and injured, he did not know or suspect that any engine or cars were approaching, or that he was in any danger. He further proved, that he heard a whistle soon after he went upon the track of the railroad at the crossing, and turning partly around, looked over his shoulder and saw the Philadelphia train in motion on the main track, and was satisfied that the noise proceeded from that train, the engine of which was starting and blowing its whistle; and the subsequent continuing whistles, ivhich he heard, he supposed proceeded from the same engine; and knowing that he was not upon any part of the main track, he felt [578]*578no alarm ; and other persons, who saw him upon the track in front of the Port Deposit train, proved that he was passing leisurely along, with his back to the approaching train, apparently unconscious of danger. He further proved, that he did not turn entirely around, nor sufficiently so to see the approaching train on the track upon which he was walking. This is the plaintiff’s own statement of the occurrence.
It was further proved that tlie trains on the main and branch road started from the depot about the same time, and that whistles were sounded from both trains at the time of starting. It was also proved that the crossing, the point where the plaintiff went upon the track of the branch road, was not in sight from the place where the train started ; and that it was not until proceeding around the curve some twenty yards from the depot, and sixty yards from the crossing, that the track at and beyond the crossing to the place where the plaintiff was struck, •could be plainly seen.
It was also proved by the engineer and fireman on the train, that all usual and reasonable precautions were taken to avoid the accident. That the engine was proceeding very slowly when the plaintiff was first discovered on the track ; that the plaintiff was well known to one of the witnesses, the fireman, and was known to be a man of good sense, and that he could hear ; and that it was supposed that he would leave the track, as he easily could have done, before the train reached him. That the engine increased its speed as it proceeded, until it reached within about 19 feet of the crossing and 119 feet from the plaintiff, when the alarm whistle was sounded a number of times in quick succession, and the brakes were put down ; and that after the whistle was sounded for down brakes, and after sounding the alarm whistle several times, and the signal for down brakes was repeated, seeing that the plaintiff did not leave the track, [579]*579the engine was reversed, but too ‘late to avoid the accident. That the train was moving at the rate of about five miles an hour, and could- have been sooner stopped by reversing the engine, but it was thought that the plaintiff would certainly get out of the way, there being sufficient room on either side of the road. It was not until it was found that the plaintiff would not leave the track, that the engine was reversed.
It was proved by other parties that the alarm whistle was heard, and the whistle for down brakes was sounded several times ; that the fireman rang the bell from the time the train started to the time of the whistle for down brakes ; that the plaintiff was seen walking leisurely along the track, about ten .or fifteen feet ahead of the engine, apparently unconscious of any danger ; and that the plaintiff himself had..declared, a few days after the accident, that he blamed no one for the accident but himself, and that it was his own fault; that he heard the whistle, but thought it was the whistle from the train on the main track; that the fireman of the train rang the bell.
This evidence of the occxirrence is without contradiction or conflict; and from it all, or any part of it. it is difficult to perceive in what the negligence of the defendant is supposed to consist.
Now, such being the case, and in view of the principles previously stated, how ought the case to have been disposed of? Clearly, in our opinion, instead of allowing the case to be passed upon by the jury at all, the Court would have been fully justified in giving an instruction, that there was no evidence before them upon which they could find for the plaintiff. All the prayers, both of plaintiff and defendant, in which it was assumed that there was evidence which might entitle the plaintiff to recover, might well have been rejected, and in lieu thereof, the instruction given which we have suggested.
[580]*580The prayers, on the part of the plaintiff, were all predicated of a state and degree of negligence on the part of the defendant that would entitle the plaintiff to recover. This was not justified by the evidence ; and hence there could be no error in refusing to grant such prayers. No prayer should be granted unless there be evidence to support it; for otherwise it would be a mere abstraction, only calculated to mislead the jury.
Here, as we have said, the evidence wholly failed to present a case to entitle the plaintiff to recover; and if a verdict had been found for him, it would have been the duty of .the Court below to have granted a new trial. There was not only a failure to show negligence on the part of the defendant, such as would give the plaintiff a, right of action, but, assuming the truth of the evidence on the part of the plaintiff, the accident was shown to have been caused by his own want of ordinary care and caution. He was upon the road track unlawfully, and without even the color of excuse or justification ; an d the agents of the defendant in charge of the train having given all the usual and proper signals to warn persons of their ápproach, they were not required to stop the train upon discovering the plaintiff on the track unless they had reason to believe that he was laboring under some disability, or that he did not hear or comprehend the signals. Phil. & R. R. Co. vs. Spearen, 47 Penn., 304; St. Louis, Alton & Terre Haute R. Co. vs. Manley, 58 Ill., 300. Having the right to a clear track, the defendant’s agents were justified in acting upon the reasonable supposition that the plaintiff would be guided by his own sense of danger, and would leave the track before he was overtaken by the train, after the signals of danger were given. His failure to do so resulted, manifestly, not from any fault of the defendant or its agents, but from his own inattention to, or mistake of the signals that were given to prevent the accident. The conse[581]*581quences of this inattention or mistake, however unfortunate for the plaintiff, he has no one to blame for but himself, and this, according to the evidence, he candidly admitted.
(Decided 3rd March, 1874.)
As we have said, the Court was not only justified in refusing the prayers offered by the plaintiff, but would have been fully justified in giving an instruction that there was no sufficient evidence upon which the plaintiff could recover; and that being the case, the granting of the prayers offered by the defendant did not in the least operate to the prejudice of the plaintiff. By allowing the case to go to the jury at all, the plaintiff was dealt with in a manner more favorable than his evidence showed him to be entitled. His case being inherently defective on the proof, he had no right either to ask instructions that assumed that he might recover, or to complain of instructions that were granted at the instance of the defendant.
The judgment appealed from must be affirmed.
Judgment affirmed.