This suit was brought in the name of the State of Maryland for the use of the widow and the father of Jacob E. Shirk, deceased, against the Western Maryland Railroad Company to recover damages for the injuries sustained by the equitable plaintiffs as a consequence of the death of Shirk. The death of Shirk is alleged to have been caused by the negligence of the railroad company. The questions that are open for consideration are all brought up by an exception to the Court's rulings on the prayers presented at the close of the case. The prayer offered at the conclusion of the plaintiff's case was too general, Robey v. State, use ofMallory, 94 Md. 67, and was, therefore, properly rejected. But even if there had been error in refusing to grant that prayer, the right to have the ruling reviewed was waived by the defendant when it proceeded thereafter to introduce evidence on its own behalf. Barabasz v. Kabat, 91 Md. 53.
The facts which must be stated so that the legal principles involved may be understood are as follows: In the latter part of August, eighteen hundred and ninety-four, Jacob E. Shirk and his co-partner, Jacob C. Landis, shipped, under a through bill of lading, from Somerset County, Pennsylvania, to Ephrata in Lancaster County, two car loads of cattle by way of the Baltimore and Ohio, the Western Maryland, the Cumberland Valley and the Philadelphia and Reading railroads. The cars were delivered by the Baltimore and Ohio railroad to the Western Maryland railroad at Cherry Run on August the twenty-first and subsequently, on the same day, with other freight cars were made up into a train to be hauled to Hagerstown for transfer to the Cumberland Valley railroad. Both Shirk and Landis were entitled to ride free on the freight train which carried the cattle. The train consisted of nine loaded cars and two empty ones and a caboose, the latter being at the end of the train. Next behind the two cattle cars was a Baltimore and Ohio gondola car loaded with steel billets, and following that were two or three other cars and then came the caboose. The train left Cherry Run in the afternoon. Shirk *Page 646 and Landis were in the caboose and both were asleep. When the train had reached a point about ten miles from Hagerstown and whilst running at a speed of twelve miles an hour the front axle of the Baltimore and Ohio gondola car broke about nine inches from the wheel, the axle fell upon the ties derailing some of the cars behind it including the caboose. Besides Shirk and Landis there were two other men in the caboose. When the caboose left the rails some one awoke Shirk and Landis and called to them to jump. Whether the person who gave the warning was one of the crew of the train or not is a disputed matter. Shirk ran out of the rear door of the caboose and leaped from the end of the platform with his back to the train whilst the train was still in motion, and fell upon his head receiving a severe injury which caused his death on September the first. Landis jumped from the side of the platform and fell on his side. He was not badly hurt but claims that since then he has been suffering from sciatic rheumatism resulting from the fall. Before the train left Cherry Run the cars were inspected by the car inspectors of the defendant, but it is asserted that the inspection was insufficient. This is one of the controverted questions of fact, and it is a question to be determined by the jury, or by the Judge sitting as a jury, under appropriate instructions. Palmer v. Delaware, c., Canal Co.120 N.Y. 170.
The declaration alleges that Shirk was injured and killed "by reason of the insufficiency of an axle of a car attached to" the freight train upon which he was riding.
The undisputed evidence shows that the injury which caused the death was inflicted, not by the broken axle but by Shirk's falling on his head when he jumped from the moving train. It is clear that the broken axle caused the derailment of the caboose, and that the derailment induced one of the occupants of that car to awaken Shirk and to suggest to him to jump in order to save himself from injury. It is altogether probable that had he not jumped he would not have been hurt; and it is certain that he would not have jumped if the axle had not broken. If the breaking of the axle was due to *Page 647 the negligence of the defendant company in not properly inspecting the gondola car before sending it out in the train, and was not the result of a hidden and undiscoverable defect; and if the deceased jumped, in the circumstances stated, because directed by an employee of the company to do so, then the equitable plaintiff — the widow — would be entitled to recover because whilst the breaking of the axle was not the immediate cause of the death it was the efficient cause, or the cause but for which the death would not have happened. It was for the jury, or the Judge sitting as a jury, to say in view of all the evidence whether negligence had been satisfactorily shown and whether the deceased had exercised proper care in jumping from the moving train. The prudence of a passenger's leaving a moving train to escape an apparent danger must be judged by the circumstances as they appeared to him at the time and not by the result. St. L. S.F.R. Co. v. Murray, 55 Ark. 248, 16 L.R.A. 787. The Court could not rule as matter of law that there was no evidencs of negligence. The deceased was a passenger. 5 Am. Eng. Ency. L. (2d ed.) 508, and note 5. He was not, however, entitled to the same absolute and extraordinary degree of care as to his safety which a common carrier is bound to exercise towards a traveller on a regular passenger train. "Where a drover is riding on a pass on a freight train the carrier is not bound to the same absolute or extraordinary degree of care as to his safety as it is to a passenger for hire riding pursuant to a ticket on regular passenger trains, for it is impossible for the company to care as well for a person riding on an ordinary freight train as it is for one riding on a regular passenger train." 4 Elliott on Railroads, sec. 1606. This proposition is self evident. The risks and dangers are much greater and more numerous upon a freight than upon a passenger train, and the same precautions in the way of running the former and in constructing the cars used therein that are necessary in respect to the latter cannot, in the very nature of things, be observed. This is a condition which every one who rides upon a freight train must be held to appreciate and understand. *Page 648 Chic. Alton R. Co. v. Arnold, 144 Ill. 270-272. In sec. 1629, 4 Elliott on Railroads, the author after speaking of the degree of care which a carrier owes its passenger proceeds: "But we do not mean that its duties and the precautions it must take are absolutely the same with respect to the operation of (freight) trains as with respect to regular passenger trains. As to its road-bed, bridges and the like, it would seem that the duty is absolutely the same, but it is obvious that the risk is greater in riding upon freight trains, that the same appliances cannot be used and that the same speed and comparative freedom from sudden jerks and the like cannot be attained. The duty of the company is therefore modified by the necessary difference between freight and passenger trains and the manner in which they must be operated, and while the general rule that the highest practicable degree of care must be exercised holds good, the nature of the train and the necessary difference in its mode of operation must be considered, and the company is bound to exercise only the highest degree of care that is usually and practically exercised and consistent with the operation of trains of that nature." "In the operation of freight trains, the primary object is the carriage of freight, and the appliances used are, and are known by the passengers to be adapted to that business, and the carrier is not, when transporting passengers thereon, held to a degree of care in its operation that would destroy the use of the train for its primary purpose." Ch. Alt. R. Co. v.Arnold, supra.
Shirk having been a passenger, but a passenger on a freight train, the usual presumption of negligence obtaining when a passenger is injured by some defect in the road-bed, or in the means or instrumentalities of transportation, would apply in a modified way, and the modification would be due to the difference in the make-up of a freight train and to the difference in the method and circumstances of its operation. The presumption of negligence, above alluded to, is a rebuttable presumption and unless the plaintiff's evidence itself destroys the presumption or furnishes no basis for it to rest on, it must be *Page 649 overcome by the defendant, and the credibility of the testimony adduced by the latter is for the jury, or the Judge sitting without a jury to determine.
As it is the duty of the carrier to use safe appliances, so it is a further duty to ascertain whether foreign freight cars delivered to it for movement over its line are safe and free from defects before suffering them to go over its road. This duty can only be discharged by properly inspecting such cars. The extent and thoroughness of the inspection must, of necessity, depend upon circumstances. The same minuteness is not possible in every instance. It must be as thorough as possible regard being had to the nature of the business and the hazards involved. It need not be scientific, it must be practical. The question is not whether, according to evidence of a scientific or speculative nature, a defect might have been detected, but whether practically and by the use of ordinary and reasonable care it ought to have been observed. Stokes v. Eastern Counties R. Co., 2 F. F. 691. The rigid rule laid down in Shop v. Grey, 9 Bing. 457, to the effect that the carrier is bound to furnish a road-worthy conveyance and if the event proves that it was not so the carrier must suffer the consequences, though as diligent in making an inspection of the coach as was possible without taking it apart was distinctly repudiated in England. Readhead v. Midland R.Co., L.R. 4 Q.B. 379. This same rule though at first followed in New York, Alden v. N.Y.C.R. Co., 26 N.Y. 102, was subsequently rejected in McFadden v. N.Y.C.R. Co., 44 N.Y. 478. It is now well settled that a carrier of persons is not liable for latent defects in its appliances which could not be discovered either in the process of manufacture or subsequently by the application of that skill and care which is required of such carriers. 5 Am. Eng. Ency. of Law, 528, and cases in note 4. Thus in Richardson v. Great Eastern R.R. Co., L.R., 1 C.P.D. 342, it appeared that the plaintiff, who was a passenger on a passenger train of the defendant was injured in a collision between the train upon which he was riding and another train and that the collision was caused by *Page 650 the breaking of an axle under a foreign freight car attached to the train which collided with the passenger train. The foreign freight car had been inspected and the tests usually employed by railroads were applied before it was sent out and the defect was not revealed. In the course of the judgment delivered on appeal it was said by JESSELL, M.R.: "The Railroad Company is bound to take reasonable care to ascertain that trucks belonging to other companies and persons so coming on their line, are in such a state to travel safely. They must therefore use due diligence in the examination of such trucks. * * * The company cannot stop all foreign trucks and empty them for the purpose of a minute examination. * * * It cannot be said that it is obligatory upon the company so to treat foreign trucks as to destroy the very objects for which they were sent on the line, viz: For the purpose of through traffic. There must be some reasonable limit to the amount of examination required." The evidence in this record furnishes an illustration of the wisdom of the above observations. It was shown that during the month of August, eighteen hundred and ninety-four — the month that Shirk was injured — the defendant company received from and delivered to the Baltimore and Ohio Railroad Company at Cherry Run, five thousand, nine hundred and thirty-three freight cars, or an average of one hundred and ninety-one each twenty-four hours. The inspection of one hundred and ninety-one cars in twenty-four hours would require that eight be inspected each hour and that would allow something less than eight minutes for a car. If through cars were delayed for a more minute inspection the very purpose had in view in forwarding them would, in a great measure, be frustrated, and rapid through shipments would have to be abandoned. If the measure of the carrier's duty with respect to foreign freight cars be the one cited above from 5 Am. Eng.Ency. of Law, and illustrated by the case of Richardson v.Great Eastern R.R. Co., supra — and there is no doubt that it is — then one who travels on a freight train made up in whole or in part of foreign cars cannot reasonably insist *Page 651 that a higher degree of care must be exercised in regard to the inspection of such cars than would be requisite if he were not a passenger thereon. In other words, he cannot claim that because he is a passenger on a freight train more care must be taken in inspecting the cars than would be necessary if he were not a passenger.
With these preliminary principles settled we may now turn to the instructions given and the prayers refused by the trial Court.
From what has been said it is obvious that the Court was right in refusing to grant the appellant's first prayer offered at the conclusion of the case, inasmuch as by that prayer the case was sought to be withdrawn from the consideration of the Court sitting as a jury on the ground that there was no legally sufficient evidence to prove negligence on the part of the railroad company. There was the presumption arising from the breaking of the axle. The standard of care required in regard to its inspection being as above declared and the burden of proving that care being on the defendant, it was for the Court sitting as a jury to say whether the railroad company's evidence measured up to that standard; and consequently the Court could not grant the prayer and thus deny to the Judge sitting as a jury, the right to pass on the credibility of that evidence.
The first instruction given at the instance of the appellee as qualified by the appellant's tenth instruction fairly put the theory of the plaintiff and there was no error in granting it.
The appellee's second instruction should not have been granted. It required the railroad company to exercise "the highest degree of care and skill which was consistent with the nature of its undertaking" in transporting Shirk as a passenger. The degree of care thus described is the degree of care imposed upon a carrier of persons on a passenger train and not the degree of care required of it in transporting a passenger on a freight train. The instruction should have been more definite. It is possible upon very close reasoning to say that by reference to the first instruction the attention of the Court *Page 652 sitting as a jury was called to the fact that Shirk was a passenger on a freight train and that the qualification limiting the care and skill to that which was consistent with the nature of the undertaking restricted the railroad's obligation to that measure of care and skill which it was bound to exercise towards a passenger on a freight train, because the undertaking was to carry him on a freight train. But there is no suggestion in either the first or the second instruction that any different measure of care and skill is applicable to the two conditions, and thus a jury would have been left free to adopt in this case the more rigid rule respecting a passenger on a passenger train. The instructions did not say that there was a difference in the degree of care and skill in the two instances, nor did they define or point out wherein the difference consisted. The instruction was, therefore, misleading.
In the third instruction it was ruled that the fact that Shirk was killed whilst a passenger was prima facie evidence of negligence on the part of the defendant which threw upon it the burden of rebutting the presumption by showing that there had been no negligence on its part. This was erroneous. The mere fact that he was killed whilst a passenger without any reference as tohow he was killed, furnished no ground for a presumption of negligence. The fact that he was a passenger and the fact that he was killed whilst a passenger justified no inference of any kind as to what caused his death, and therefore, did not warrant the conclusion that his death had been due to the defendant's negligence. This is illustrated in Penna. R.R. Co. v.MacKinney, 124 Pa. St. 462, where it is said: "A passenger's leg is broken while on his passage in a railroad car. This mere fact is no evidence of negligence on the part of the carrier until something further be shown. If the witness who swears to the injury testifies also that it was caused by a crash in a collision with another train of cars belonging to the same carrier, the presumption of negligence immediately arises; not, however, from the fact that the leg was broken, but from the circumstances attending the fact. Benedict v. Potts,88 Md. 56, 57. *Page 653
The fourth instruction granted at the instance of the appellee was also erroneous. Whilst it is true that a presumption of negligence may arise from the circumstances of a case and that it is incumbent on the defendant to rebut that presumption when it does arise, it is not true that the defendant must show, in order to rebut the presumption in a case like this, "the utmost care and diligence in the running and management of the train * * * * * and in all the subsidiary arrangements necessary to the safety of the deceased," especially as the declaration alleges the insufficiency of the car axle as the sole ground of negligence. When the cause of the injury is charged in thenarr. to be the insufficiency of an axle it is error to require the carrier to show, not only due and proper care with respect to that axle, but in addition the sufficiency of all the subsidiary arrangements necessary to the safety of the deceased, though it is not pretended that any of those subsidiary arrangements (whatever they were) had anything at all to do with the injury. Under this instruction the defendant company would have been liable though there had been no negligence in respect to the axle — the thing which did cause the injury — if there had been negligence in regard to some subsidiary appliance which didnot cause the injury; because the thing which did and the things which did not cause the death of Shirk are conjunctively put in the instruction, and the company was required in order to rebut the asserted presumption of negligence to show the utmost care and diligence with respect to all of them.
The fifth instruction was misleading. It was not applicable to the facts of this case. It has been held proper in some cases.B. O.R.R Co. v. State, use of Hauer, 60 Md. 449. But it is not universally applicable. The absence of fault on the part of the deceased can only be inferred from the general and known disposition of men to take care of themselves and to keep out of the way of difficulty and danger, when there is no reliable proof to negative the inference or when there is rational doubt upon the evidence as to the acts and conduct of the parties. P.W. B.R.R. Co. v. Stebbing, *Page 654 62 Md. 518. There is no room for a rational doubt upon the evidence, as to the acts or the conduct of the deceased. There was no basis for the presumption in this case and it was misleading to inject it.
The sixth instruction is free from error, and the seventh prayer was refused.
The eighth and ninth instructions relate to the measure of damages. Taken in connection with the appellant's tenth they are unobjectionable.
There was injurious error in modifying the appellant's second,third, fifth, sixth and ninth prayers. The modification which was added by the trial Court to each of these prayers required the railroad company to show that it had used due care "in all the subsidiary arrangements necessary to the safety of the passenger whilst being transported over the road," notwithstanding the fact that it was not contended or even suggested by the plaintiff that the absence of due care in any of the subsidiary arrangements was the cause of the injury. The declaration, as has been pointed out, counted on negligence in respect to the car axle and in respect to nothing else, and the issue thus made should not have been amplified or enlarged by the modification annexed to those prayers. City Pass. Ry. Co. v.Nugent, 86 Md. 360. The second, third, sixth and ninth prayers as presented before being modified by the trial Court, were designed to define the degree of care imposed by the law upon the railroad company as to the inspection of freight cars of other roads delivered to it for movement over its own road, and in the light of what we have said on this subject they ought to have been granted without modification.
The fifth prayer as presented definitely ruled that the deceased assumed the risks of all dangers arising from defects in foreign freight cars when the defects could not be detected or discovered by careful inspection. As such an inspection is the measure of duty which the company was bound to perform with respect to such cars, it owed no higher duty to the deceased who was a passenger on the freight train; and when *Page 655 that duty was done, if done, the hazards incident to hidden or latent imperfections were, of course, assumed by the passenger on such a train.
The appellant's fourth prayer stated the same principle in a slightly different form and for the reasons already given should have been granted.
The seventh prayer was properly refused. There was some evidence from which the Judge sitting as a jury might have found that Shirk was induced to jump from the caboose by the act or advice of an employee of the railroad.
The appellant's eighth and tenth prayers were granted.
Because of the errors indicated the judgment in favor of the plaintiff must be reversed and a new trial will be awarded.
Judgment reversed with costs above and below and new trialawarded.
(Decided November 21st, 1902.)