West Virginia Central & Pittsburg R. Co. v. State Ex Rel. Fuller

54 A. 669, 96 Md. 652, 1903 Md. LEXIS 107

• Court: Court of Appeals of Maryland
• Decided: March 31, 1903
• Status: Published

Opinion

McSherry, C. J.,

delivered the opinion of the Court.

This is a personal injury case. All the questions involved arise on the instructions granted and on the prayers rejected by the trial Court, and they are brought up by the one bill of exceptions which the record contains. The legal principles that must control the final decision are perfectly familiar and the only difficulty presented springs, as is generally the case, from the application of those principles to the peculiar facts of the occurrence. A brief statement of the facts— both those which are uncontroverted and those which are disputed — will now be made as they furnish the basis of the discussion which will follow.

The appellant is a railroad company whose road extends from Cumberland, in the State of Maryland southwardly to West Virginia Junction and thence on to Elkins, in the State of West Virginia. The accident, out of which this case grew, happened near the town of Luke, in Allegany County. At the place of the accident there is a siding used to let trains going in opposite directions pass. On the day the injury was inflicted a train of forty-nine freight cars, thirty-three of which were loaded with steel rails and sixteen of which were empty, was proceeding southwardly towards West Virginia Junction up a considerable grade, whilst a train of empty freight cars, destined northwardly, stood on the siding waiting for the south-bound train to pass. Upon one side of the railroad track an automobile works was located. Upon the opposite side of the track a man by the name of Rogers lived. The men employed at the automobile works got their drinking water from a well in the yard of Rogers. Melville W. Fuller, a boy of little more than fourteen years of age, was employed at the automobile works to carry water from the Rogers’ well to the works for the use of the workmen there. To go from the works to the well he was compelled to cross the main track and the siding by a path used by him and others, though the path was not a regular public or private crossing. On July the 8th, 1901, the boy crossed the two tracks with a bucket in his hand to get water. Before he could return the northbound train of empty freight cars backed into the siding and the south-bound train of loaded and empty freight cars passed, going up'a heavy grade. This latter train was hauled by two engines, one of which was in front and the other was some six or seven cars back from the front. After it had passed the switch the train of empties standing on the siding started to pull out. The boy all this while was standing according to the contention of the railroad company, on its right of way, but according to the contention of the appellee, in the yard of Rogers, waiting for the two trains to clear the crossing at the path so that he might return with his bucket of water to the automobile works. After the south-bound train had passed some distance up the grade six or eight of the rear cars broke loose and came back at a high rate of speed and as the train of empties had not entirely cleared the siding the caboose of the former struck with a glancing blow the caboose of the latter, derailing both and driving the last-named caboose over into the yard of Rogers. It fell upon the boy and instantly crushed him to death. This suit was then brought in the name of the State for the use of the boy’s widowed mother against the railroad company to recover damages for the injury she sustained by the death of her son. It was shown that whilst most, if not all of the cars in the southbound freight train were equipped with air-brakes, all of those so equipped were not coupled up with the air; and it was proved that if the air-brakes had been properly coupled up, the moment the train parted both sections of it would have instantly stopped and the cbllision which ¿nsued would have been avoided and the boy would not have been killed. It was not shown by the appellee what caused the six or eight rear cars of the south-bound train to part from the other cars ; nor did the appellant offer any explanation of that occurrence.

At the close of the evidence the appellee offered one prayer, which was granted, and the appellant offered ten, of which the fourth, fifth and tentii were granted and the others were rejected. The verdict and the judgment thereon being in favor of the appellee, the appellant appealed and the rulings of the trial Court in granting the appellee’s prayer and in refusing to grant the appellant’s first, second, third, sixth, seventh, eighth and ninth prayers are assigned as errors for review in this Court. The prayers will be found set out at length in the Reporter’s statement of the case.

The first and second prayers of the appellant go to right of recovery and were designed to withdraw the case from the jury, on the ground that no legally sufficient evidence had been adduced to show negligence on the part of the appellant in the discharge of its legal obligations to the deceased boy or to his mother. This opens up the whole law of the .controversy.

Of course there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury. This has been so often stated that it is not deemed necessary to elaborate it. As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty. Thus the duty due by a common carrier to its passengers is entirely different from the duty owed by the same carrier to a trespasser on its right of way; and, therefore, an act which in the first instance would be negligent because a breach of the particular duty there du e would not be negligent in the second instance simply because the same duty is not due. The duty owed to a trespasser on a - right of way is measurably less than the duty owed to the same person when not a trespasser but when entirely off the right of way. As said by this Court in West. Md. R. R. Co. v. Kehoe, 83 Md. 434: “A railway company is not bound to anticipate that a person will be negligently or wrongfully on its tracks, but if its servants see a person in a place of peril on the right of way then the duty arises to avoid injuring him if possible. But to recover for an injury sustained when in such a position, the plaintiff must show (1) that the company’s servants had knowledge of his peril (2) that they had knowledge in time to avoid an injury ; (3) that they then failed to exert proper care to avoid the injury.” This doctrine, stated even more broadly, the appellant had the full benefit of it in its fifth instruction; for the jury were there told that if the boy was on the right of way the appellee would not be entiled to recover although the death of the boy was the result of the appellant company not having air-baakes on the cars that became detached from the train, “or the result of defective appliances or machinery." But whilst the measure of duty due by a railroad company to a trespasser is as stated' in Kehoe’s case, supra, there is manifestly a higher duty due by railroad companies to persons on their own premises or lawfully on the premises of others. So use your own rights and property as to do no injury to those of others, is a maxim of the law which imposes upon a railroad company a duty towards the public and towards each individual who is not himself a wrongdoer, and which is no less binding than when applied to natural persons in their ordinary relations. Numerous illustrations of the application of this doctrine might be given, but a few familiar ones will suffice. The maxim, though not as applying to a railroad company, was cited and adopted generally by this Court in Scott v. Bay, 3 Md. 446. That was a suit brought to recover damages which the plaintiff sustained by the quarrying of stone by the defendant on the latter’s own premises. The blasting threw large quantities of stone on the plaintiff’s land. The defendant asked the lower Court to instruct the jury that the defendant had a right to quarry stone from his quarries, and that the plaintiff could not recover for any injury he sustained in consequence of such quarrying, if the jury believed that proper precautions were used in working the quarries, and that such injuries were sustained without default of the defendant. The prayer was rejected and on appeal this Court said: “In the first place, there is no sufficient evidence in the record to warrant such a prayer, that proper precautions were used in working the quarries. But if proper precautions had been taken, they would still constitute no vindication of the defendant for the injuries resulting to the plaintiff. Unless a party can show a right, either in the nature of a presumed grant or easement, or in some other mode, to use his property in a particular way, he cannot use it in that particular way, if it occasions injury to his neighbors, in the quiet enjoyment of their legal rights and privileges, and it makes no difference whether precautions were used or not to prevent the injury complained of.” The same principle underlies the decision of B. & P. R. R. Co. v. Reaney, 42 Md. 117. There the railroad company had been given authority to construct a tunnel under Wilson street, in the city of Baltimore. In doing the work the walls of Reaney’s house were injured. The house stood on Madison avenue, nearly twenty-five feet northwest of Wilson street, with another dwelling intervening between it and Wilson street. The excavation made for the tunnel did not come within something over twenty-five feet of Reaney’s house, but did approach quite near the one adjoining it. The walls of the latter settled and that caused the walls of Reaney’s house to crack. Reaney sued the company for the damage thus inflicted and recovered a judgment. On appeal the judgment was affirmed, and this Court speaking through Judge Alvey said :■ “That there was no negligence or want of care in doing the work, is no answer in a case like this. *****. That the excavation of the street for the tunnel was lawful, and done in a lawful manner at the time, can constitute no defense to this action, if damages actually-resulted from the work. There are many cases, in which an act may be perfectly lawful in itself,- and will continue to be so, until damage has been done to the property or person of another; but from the moment such damage arises the act becomes unlawful, and an action is maintainable for the injury.” And Bonomi v. Backhouse, Ell. Bl. & Ell. 662; Smith v. Thackara, L. R. 1 C. P. 564 and Add. on Torts, 9, are cited. The same doctrine was applied at an early date in actions of trespass. Thus in trespass quare clasum fregit the defendant pleaded that he had land adjoining the plaintiff’s close, and upon it a hedge of thorns; that he cut the thorns, and that they, ipso invito,»fell upon the plaintiff’s land, and the defendant took them off as soon as he could, which was the same trespass, &c. On demurrer, judgment was given for the plaintiff, on the ground, that, though a man may do a lawT ful thing, yet, if any damage thereby befall another, he shall be answerable if he could have avoided it. Broom’s Leg. Max., 161, and cases there cited. It is true these last cases were in trespass and the declaration now before us is in case. But the prayers at present under consideration are demurrers to the evidence and make no reference to the pleadings ; hence the right to recover depends not upon the form of the action or the state of the pleadings, but solely upon the case made by the proof. Balto. Bldg. Ass. v. Grant, 41 Md 569; Leopard v. Canal Co., 1 Gill, 222.

There is another class of cases, more akin to the one stated in the declaration in this record, wherein it has been recognized as the settled law that when an injury results from the negligent performance of a lawful act a right of action arises by reason of the negligence. B. & P. R. R. Co. v. Reaney, 42 Md. 130; Leader v. Moxon, 3 Wils. 461; Jones v. Bird, 5 B. & Ald. 837; Lawrence v. Gt. N. R. Co. 16 Q. B. 653. The running of its trains by the railroad company was a lawful act, but was there negligence in permitting some of its cars to be hurled outside of the right of way whereby the injury was inflicted ? It must be borne in mind that we are dealing with a demurrer to the evidence and as there was some proof from which the jury could conclude that the boy, when killed, was not on the right of way, it must be assumed as a fact that he was not.

Let us see, then, first what caused the death ; and secondly, what duty due by the appellant was disregarded by it.

It is obvious that the injury would not have happened if the rear cars of the south-bound train had not become detached from those in front of them ; or, if the detached cars had been equipped with air-brakes in working order; or, if just at the precise moment of the collision the caboose of the northbound train had been clear of the siding and on the main track because then the glancing blow which threw the caboose to the side could not have been given. The concurrence of these three things produced the injury. Whilst each was prior in point of time to the one that succeeded it, when measured by minutes, or perhaps, seconds, all together constituted the efficient cause, but for the occurrence of which the boy would not have been killed. No independent act emanating from other agency than the defendant iteself intervened to give rise to the application of the doctrine of proximate and remote cause ; because all the three acts which combined to produce the death were acts of the appellant.

Now, it would seem to be a'perfectly plain duty of a railroad company to keep its cars on the rails laid on its right of way, or at least, to' keep them within the limits of" its right of way. Every abutting land proprietor has a right to insist that this shall be done so that in using the dangerous agencies employed in Operating the road, his person and property may not be'injuriously affected. This duty is due not only to the abutting land owner but to every individual lawfully oit contiguous property to the right of way. It is, therefore, a duty due every person along' or who may be passing along, but not on, the right of way. And this duty springs out of the obligation upon the company to so use its own rights and property as not to injure the rights or the property of others. Starting with that duty, it is clear when a car has by a collision been hurled outside the right of way and'an injury has been inflicted on one lawfully there, a breach of duty has occurred and consequently there has been negligence, and for the injury thus inflicted an action will lie unless it be shown that an unavoidable accident was the efficient cause of the injury. No effort was made to do this, and therefore, it does not become necessary to trace back of the breach of duty which occasioned the injury the causes which produced that breach or to ascertain whether the causes of the cause were themselves acts of negligence.

From the views we have expressed it is quite clear in the light of the conflicting evidence as to whether the boy was within or outside of the right of way, that the Court was entirely right in refusing to withdraw the case from the consideration of the jury; and it only remains to inquire whether there was any error in the other rulings to which exception was reserved.

The appellant’s third prayer proceeds, upon the theory that if the boy was standing, when killed, within the company’s right of way then no cause of action exists even though the cars which broke away from the south-bound train and collided with the other train were not provided with air-brakes or connected up with with the air-brake appliances. There was no error in rejecting that prayer, for the plain reason that its theory was distinctly covered by the fourth and fifth which were granted. The theory which both the fourth and fifth instructions announce is that the failure to use appropriate appliances to prevent such collisions as the one described cannot be relied on by a trespasser as evidence of an omission by the' company to discharge any duty which it owed to him. It would have been error to repeat that same doctrine by granting the third prayer.

The appellant’s sixth prayer was radically defective. It asked the Court to rule that “under all the circumstances of this case the defendant owed no duty to the deceased” to equip its cars or any of them with air-brakes, and that even if the death of the boy resulted from the company’s failure to so equip its cars no recovery could be had. Had the prayer been granted the legal conclusion deducible from it is this : Even though the boy had not been on the right of way and even though by the failure to supply air-brakes the company had not so used its rights and property as to avoid injury to others to whom it owed a duty of not inflicting an injury upon them ; still no recovery could be had. What has been said in disposing of the first and second prayers of the appellant is sufficient to show the fallacy of this sixth prayer.

The seventh prayer is defective in that it undertakes to divide up and segregate the several elements which constitute the final and ultimate cause of the injury and to say that inasmuch as the parting of the train and not the failure to have air-brakes was the proximate cause of the accident, no recovery could be had because there was no evidence to show that the severing of the train was due to any negligence on the part of the appellant. It is clear that this prayer entirely ignores the difference in the duty owed by the company to a trespasser and to one not a trespasser on its right of way, and wholly disregards the principle that the company in using its own appliances was bound to so use them as not to injure another in the lawful pursuit of his rights. If the boy was killed when not on the right of way, then the company did not so use its own rights and property as not to injure another and in consequence was responsible, because the failure to keep within its right of way was, in the circumstances stated, a breach of duty that it owed -to every one so situated, and was, therefore, negligence ; and it was not incumbent on the appellee to prove that there had been antecedent negligence producing the ultimate negligent act. The act claimed to be the ultimate negligent act being established the appellant was then required to show in exculpation or defense, that the act was an unavoidable accident which did not proceed from prior or coincident negligence. .

A kindred vice runs through the eighth and ninth prayers. By the eighth the Court was asked to say to the jury that if but for the intervention of the train of empty freight cars, thejde tached cars from the south-bound train would have gone on down the track without injuring the deceased, then no recovery could be had unless there had been negligence in drawing the train of empty cars from the siding ; and by the ninth an instruction was sought to the effect that there was no evidence of negligence in so drawing the train of empty cars from the siding or that the parting of the south-bound train was in any way caused by the negligence of the appellant. The actionable negligence did not consist- of one or the other of a series of acts, but in the ultimate outcome of all. Separated and wholly segregated from everything else there may have been no negligence in the act of moving the train of empties from the siding ; but when the concurrence of that act with the parting of the other train and with a failure to equip the cars with air-brakes in working order resulted in a collision which threw the caboose outside of the right of way; and when the throwing of the caboose outside of the right of way is the thing which caused the déath, that act, and not the antecedent steps which led to it, must be treated as the efficient cause of the injury and the act of negligence for which the-appellant is answerable, because that is the act whereby -the - railroad - company, in exercising its own rights exceeded the limits of those rights and inflicted an injury outside of its right of way upon a person towards whom it owed the duty not to inflict such an injury as that person was then situated. - -

(Decided March 31st, 1903.)

The plaintiff’s or appellee’s prayer whilst very general is not open to such criticism as would justify a reversal. B. & O. R. R. Co. v. State, use of Trainor, 33 Md. 545.

As we find no errors in the rulings complained of the judgment will be affirmed.

Judgment affirmed with costs above and . below.