Northern Central Railway v. Ward , 63 Md. 362 ( 1885 )

Yellott, J.,

delivered the opinion of the Oourt.

Against the appellant, as defendant, an action was instituted by the appellee, who, as plaintiff, in her declaration averred that three colts belonging to her were negligently killed by the agents of the defendant in charge of a train of cars on its railroad. A road, used as a thoroughfare, extended along the west side of the railway, and on the morning when the accident occurred the colts were being driven from a watering place on the west side of said railway to a crossing, so as to be placed in a lot used for pasturage on the east. The .plaintiff offered evidence tending to show that these animals were killed in consequence of the defendant’s agents neglecting to intimate the approach of the train by giving the usual signal at the proper point on the road. There was proof in apparent conflict with this evidence adduced by the defendant. The record discloses a case proper for the determination of a jury, enlightened hy the instructions of the Court in relation to the legal principles applicable to the facts elicited by the investigation.

This controversy is governed and controlled by the provisions of Article 77, section 1, of the Code of Public General Laws. This Court has so construed the statute that there can now be no doubt that in all such cases as this, negligence must be imputed to the company defendant, and the onus probandi in negation of this imputation, is on saidrcompany, and it must show that the injury complained of resulted from a disaster which could not have been avoided by the use of proper care and diligence, and that such proper care and diligence had been observed by its agents. Balto. & Ohio R. R. Co. vs. Mulligan, 45 Md., 486 ; West. Md. R. R. Co. vs. Carter, 59 Md., 306.

The effect of the statute is to relieve the plaintiff from the obligation which the common law imposes. It is no longer incumbent on him, in the opening of his case, to show affirmatively the negligence of the defendant. The duty rests on the defendant to supply proper and adequate proof in rebuttal of the presumption of negligence. In other words, it must be assumed that the injury sustained was caused by the defendant’s negligence, in the absence of satisfactory and sufficient proof to the contrary. The defendant may supply this proof by showing a state of facts demonstrating care and caution on the part of its agents; and it-may also show.that the accident resulted from negligence on the part of the plaintiff.

In the cases just cited, this Court decided that a plaintiff may have allowed his stock to stray at large, unattended, without being guilty of such contributory negligence as would preclude his right to recover, if the accident could have been avoided by the use of proper care on the part of the defendant’s agents. In the case presented by this record it was obviously within the province of the jury to find whether, at that particular time, the stock was properly on the road, the plaintiff occupying land on each side of the railroad, and being compelled to use the established crossing as a place of transit from one lot to another.

' The defendant excepts to the granting of the thirdj fourth and fifth prayers of the plaintiff, and to the rejection of its second, third and fourth prayers, and to the refusal of its first prayer, except as modified by the Cojirt.

The Court below was clearly right in rejecting the second, third and fourth of defendant’s prayers. As has been already observed, it was for the jury to find whether the plaintiff was negligent in having the colts on the road at that particular time, and it was also for the jury to find whether the whistle was sounded, or ought to have been sounded, at the whistling-post. In two of these prayer’s the Court is ^asked to say that if the engineer took proper precautions to avoid the accident, after he saw the colts on the road, the plaintiff cannot recover. The fourth prayer is still more objectionable; and all three were properly rejected, because they wholly ignored important facts which should be considered in determining the rights of the respective parties.

The same objection is obviously applicable to the first prayer of the defendant, and the Court was right in refusing to grant it without the modification.

In the three prayers of the plaintiff granted by the Court, the jury were told that even if the plaintiff was guilty of negligence yet, if the accident would not have happened, had the agents of the defendant observed proper care and caution, the plaintiff was entitled to recover. The defendant’s first prayer, as modified by the Court, declared that if the plaintiff’s negligence led to the occurrence of the accident, the plaintiff could not recover, unless the defendant’s agents, notwithstanding such negligence, could, have prevented the accident by sounding the whistle at the usual place for so doing. These instructions are substantially the same. They clearly and concisely enunciate the legal principles governing the case and put it properly before the jury.

(Decided 12th March, 1885.)

As no error can he discovered in any of the rulings of the Court below its judgment should be affirmed.

Judgment affirmed.