Baltimore & Ohio Railroad v. Mulligan , 45 Md. 486 ( 1877 )

Robinson, J.,

delivered the opinion of the Court.

The question of contributory negligence has been considered so often by the Courts, that one might reasonably "suppose the law in regard to it, ought by this time, to be pretty well settled; and yet it seems, that in this State, the question is still open for discussion.

The plaintiff is here claiming damages for a cow, killed on the railroad track of the defendant, and the latter contends, that if the owner permitted or suffered the cow to stray upon the track of the railroad, such negligence on his part, constitutes a bar to the action. On the other hand, it is insisted, that although the cow may have been upon the road wrongfully, yet the plaintiff is entitled to recover, if the jury should find that the defendant might, by the exercise of ordinary care, have avoided the injury. So the broad question is presented, whether a railroad company is hound to exercise ordinary care, in order to avoid injury to cattle or other stock found trespassing upon its road? It seems to us there ought not to be any difficulty in deciding this question, and yet it must he admitted that the decisions, in this country at least, are somewhat conflicting. We think, however, the best considered cases, both in England and here, hold the law to he, that mere negligence or want of ordinary care on the part of the plaintiff, will not preclude his right to recover, provided the defendant might, by the exercise of ordinary care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff.

So early as Butterfield vs. Forrester, 11 East, 60, Lord Ellenborough, C. J., said:

“ One person being in fault will not dispense with another’s using ordinary care for himself.”

And then in Davies vs. Mann, 5 Mees. & Wels., 546, Lord Abinger said:

“As the defendant might, by proper care, have avoided injuring the animal and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.”

And then again, in Mayor, &c. of Colchester vs. Brooke, 7 Ad. & Ell., (N. S.,) 877, Lord Denman said:

“As a general rule of law, every one in the conduct of that which may he harmful to others, if misconducted, is hound to the use of due care and skill, and the wrong-doer is not without the pale of the law for this purpose.”

These cases were reviewed, and the question fully considered by the Court of Exchequer Chamber, in Tuff vs. Warman, 94 Eng. Com. Law Rep., 573, and it was held, that mere negligence or want of ordinary care on the part of the plaintiff, would not disentitle him to recover, if the defendant might, by the exercise of ordinary care and caution, have avoided the neglect or carelessness of the plaintiff.

The rule thus laid down has been sanctioned and approved by the highest Courts in several States in this country, and we think it a just and reasonable one. State vs. Railroad, 52 N. H, 528; Kerwhacher vs. Cleveland, Columbus and Cincinnati R. R. Co., 3 Ohio State, 172 ; Evansville, &c., R. R. Co. vs. Hiatt, 17 Indiana, 102; Vicksburg and Jackson R. R. Co. vs. Patton, 31 Mississippi, • — ; Beers vs. Housatonic R. R. Co., 19 Conn., 572.

It is a duty resting upon every one, so to conduct -himself, and so to use his own property, as not to inflict unnecessary and avoidable injury upon the person and property of another. A railroad company, it is true, is entitled to the exclusive and unmolested use of its road ; and it is the duty of owners to keep cattle within their inclosures, hut the failure to do so, will not justify persons in the charge and management of a railway train to run over them, if by the exercise of ordinary care it can he avoided.

The owner of land is also entitled to its exclusive use, and has the right to expel cattle or other stock trespassing upon it, hut in so doing he has no right to inflict unnecessary injury. So too, cattle found upon a public highway, strictly speaking, may he said to he there unlawfully, and yet no one has .the right to - run over and injure them, if it can he avoided by the exercise, of reasonable care. We see then no good reason why railroad companies should be exempt from this common and universal obligation. We do not mean to say, they are obliged to observe the same particular acts of caution required of persons travelling on an ordinary highway. We recognize the fact, that they have duties of a public nature to perform, and we are not to be understood as deciding, they are obliged necessarily to stop the trains and thereby miss their connections, much less to endanger in any manner the safety of passengers. No one has the right to complain of injury to cattle or other stock which he has permitted to stray upon a railroad track, unless such injury can be avoided, consistently with these higher and paramount duties resting upon the company. What we mean to say and decide is this, that it is the duty of the company to exercise reasonable care to avoid injury to cattle dr stock found on its road, though such cattle and stock may he there through the negligence of the owner. What is reasonable care, is a question for tlje jury, to be determined according to the facts and circumstances of each particular case. But it may he said, this rule affords no protection to the company, because a jury will always find in favor of the plaintiff. This, however, we cannot presume, and if the jury should render a verdict not warranted hy the evidence, it is in the power of the Court to set it aside and grant a new trial.

The cases of Lamborn, 12 Md., 259, and Keech, 17 Md., 45, are not, we think, in conflict with these views. In the former it was held, that the Acts of 1838 and 1846, which made railroad companies responsible for injuries to cattle and other stock, unless the companies proved that the injury was the result of unavoidable accident, did not apply to a 'case in which the plaintiff’s negligence had directly contributed to the injury. But in Keech’-s case it was decided, that if the horse was upon the railroad track without the fault of the plaintiff, these Acts did apply, and it was incumbent on the company to prove that the injury was the result of unavoidable accident. It is true, the Court said, as a general rule a plaintiff will not be entitled to recover, if his negligence directly contributed to the injury complained of, hut the precise question presented by tbe prayers in this case, whether it is the duty of a railroad company to exercise reasonable care to avoid the consequences of the plaintiff’s negligence, was not considered nor decided. •

(Decided 17th January, 1877.)

Since these cases, the rule we have laid down has been distinctly recognized and approved by this Court, and it must be considered as the settled law of this State. See Price’s Case, 29 Md., 420; State, use of Dougherty vs. Baltimore and Ohio R. R. Co., 36 Md., 366, and Lewis vs. Baltimore and Ohio R. R. Co., 38 Md., 588. Einding no error in the rulings below, the judgment will be affirmed.

Judgment affirmed.