
    James H. Spencer vs. The Baltimore & Ohio Railroad Company.
    Law. No. 23,620.
    Decided June 1, 1885.
    Justices Cox, James and Merrick sitting.
    The doctrine of contributory negligence applies only where the negligent act of the plaintiff is concurrent in point of time with the negligent act of : the defendant .so that the defendant has no opportunity to act with reference to the act of the plaintiff. It has no application to a case where, the negligence of the plaintiff was prior in point of time to that of the defendant. In such a case the negligence of the plaintiff is not contributory, for the defendant’s action should be controlled by the plaintiff’s. whether the act of the latter was the result of carelessness or not.
    STATEMENT OE THE CASE,
    Tbis was an action brought to recover damages for personal injuries resulting to the plaintiff from the alleged wrongful and negligent act of the defendant, in suddenly and without notice starting and putting in motion one of its freight trains over which the plaintiff was attempting to cross.
    On the morning of November 2d, 1881, the plaintiff, in going to the place of his employment was delayed by the blocking of the street with the defendant's train, which was standing upon the track along the street he desired to cross. He waited for fifteen or twenty minutes, expecting the train to pass on, but finding that it did not move, and being in a hurry to get to his work, he determined to cross over between the cars. Just as he made the attempt, and was in the act of crossing,, and without any notice having been given by ringing the bell or blowing the whistle, the train was started, the coupling tightened, and his foot was caught between the bumpers of two of the freight cars and badly crushed.
    Irving Williamson and Campbell Carrington for plaintiff:
    ' The facts in this case bring it directly within the opinions of the court in Grant vs. R. R. Co., 2 Mac Arthur, 277.
    
      The defence is contributory negligence, and the contention is that the defendant cannot be charged unless it had actual notice of the position of the plaintiff a sufficient time before the accident to have avoided it. To this we answer that the record shows that the defendant habitually blockaded the street in question in violation of law (Act of Congress, March 2, 1831; Act of Legislative Assembly, August 23, 1871), and for a long time, to the very day of the occurrence, it knowingly permitted persons to pass óver the train while it was at rest. This custom, established by the defendant, charged it with notice that persons were so passing, and made it a duty to give warning of some kind before the train was moved. The jury having found that the train was stationary when the plaintiff attempted to pass over it in pursuance of this custom, and that the injury was occasioned by the sudden movement without notice, the liability of the defendant was fixed. R. R. Co. vs. Horst, 3 Otto, 291; Davies vs. Mann, 10 M. & W., 546.
    E. T. Merrick and George E. Hamilton for defendant:
    It is contended by the plaintiff, and was held by the court below, that although the plaintiff’s negligence contributed to the injury, there could, nevertheless, be a recovery if the defendant was also guilty of negligence.
    It is true that in some cases there may be a recovery when both parties are guilty of negligence, but the negligent acts of the defendant which will subject him to liability, notwithstanding the contributory negligence of the plaintiff, are such as are committed after he becomes aware of the danger to which the plaintiff has exposed himself. Swigert vs. R. R. Co., 75 Mo., 475.
    In R. R. Co. vs. State, 31 Md., 366, the court says: “It is true that, in some cases, there may be negligence in both parties concerned, and yet an action may be maintained; but in such cases it must appear, either that the defendant might, by a proper degree of caution, have avoided the consequences of the injured party’s neglect, or that the latter could not, by ordinary care, have avoided the consequences of the defendant’s negligence. This, however, implies time for the one party to become aware of the conduct and situation of the other, for neither could be required to anticipate the other’s negligence.”
    In Lewis vs. R. R. Co., 38 Md., 589, the court held that “where there is no opportunity for one party to become aware of the negligence of the other, and the injury is occasioned hy the concurrent and co-operating negligence of both, it is well settled that no action will lie. In the case before us, if it be conceded there was negligence on the part of the defendant in the use of the engine at the time of the injury, it is equally clear, there was concurrent negligence on the part of the plaintiff in attempting to get on the platform of the car, and although the crossing was temporarily blocked, it cannot be imputed as negligence to the agents of the defendant, that they did not anticipate such recklessness' on the part of the plaintiff. After the attempt was made to get on the cars it was impossible for the defendant to have avoided the injury hy the exercise of ordinary care, because there was no interval of time during which the agents of the latter could become aware of the danger to which the plaintiff was exposed.”
    In R. R. Co. vs. Johnson, 103 Ill., 512, it was held, that “in an action to recover damages for a personal injury resulting from the alleged negligence of the defendant, the plaintiff having himself contributed to such results by the negligence on his part, by placing himself in a situation of danger, if the question arises as to the measure of care it was the duty of the defendant to have observed in case it was in his power to have avoided the consequences of the plaintiff’s negligence, then, in order to charge the defendant it must be shown he had knowledge of the peril in which the plaintiff had placed himself, or the equivalent of such knowledge, at least long enough before the injury inflicted to have enabled him to form an intelligent opinion as to how the injury might be avoided and to apply the means.”
    In Dunn vs. R. R. Co. (Va.) 16 Am. & Eng. R. R. Cases, 363, it was held that “one injured by the mere negligence of another, cannot recover compensation therefor, if he, by his own negligence or wilful wrong, contributed to produce the injury, so that but for his concurring and co-operating fault it would not have happened; except when the direct cause of the injury is the omission of the other party, after being aware of the injured party’s negligence, to use a proper degree of care to avoid the consequence of such negligence.”
    And in McQuilkin vs. R. R,, 50 Cal., 7, it was held that “if the negligence of the passenger contributed directly or proximately to the injury complained of, no recovery can be had against the carrier, whatever may have been his negligence. ' It is not giving the defendant the benefit of this rule, as to contributory negligence, to charge the jury that the negligence of the plaintiff, which contributed as a proximate cause to the injury, will prevent a recovery, provided the defendant has not been guilty of negligence.”
    For additional authority upon this point see the following cases: R. R. Co. vs. Hall, 72 Ill., 222; R. R. Co. vs. Holmes, 5 Col., 177; Kelly vs. Hendrie, 26 Mich., 255; Brown vs. R. R. Co., 58 Me., 384; Dickey vs. Tel. Co., 43 Me., 492; Gonzales vs. R. R. Co., 38 N. Y., 440; Dwyer vs. Talcott, 16 Ill., 300.
    In the case at bar it appears, from the testimony of the plaintiff himself, that his attempt to cross over the train, the starting of said train, and the infliction of the injury, were almost simultaneous in their occurrence. Between the act of the plaintiff and the movement of the train the defendant could neither have obtained knowledge of the plaintiff’s peril nor have taken steps to prevent it.
    It is therefore submitted that the court erred in granting its second instruction, and that its remarks in explanation thereof were inapplicable to this case and misleading to the jury.
    The authority upon which the instructions of the court to the jury are based, if indeed it can be said that they are based on authority at all, is Grant vs. R. R. Co., 2 Mac Arthur, 277, a case cited and much relied on at the trial below by counsel for plaintiff.
    
      If it were necessary, that case might be distinguished in several important particulars from the case at bar, but the mere suggestion that it was decided several years before the TJ. S. Supreme Court had announced its opinion in the R. R. Co. vs. Jones, 95 U. S., 439, and R. R. Co. vs. Houston, cited supra, is deemed by counsel a sufficient commentary upon the case of Grant vs. The R. R. Co.
   Mr. Justice James

delivered the opinion of the court.

It appears that the plaintiff was on the street early in the morning, during the month of September, and found lying in his path a long train of cars. After waiting a length of time for the train to move out of his way, and being impatient to reach his business, he attempted to climb over the obstruction by passing between two cars • just at that moment the train was started, without the warning having been given, by the sound of a bell or whistle, and his foot was crushed. The suit is based upon the alleged negligence of the defendant, to which the plaintiff claims not to have contributed.

At the conclusion of the trial, the defendant offered ten prayers, which were all rejected, and, thereupon the court substituted two instructions, one of which was as follows:

“If the jury believe from the evidence that the plaintiff attempted to cross the track between two of the freight cars while the train was at rest, and that while making such attempt the train was put in motion and the plaintiff was thereby injured, and shall further believe that the plaintiff was guilty of a want of ordinary care and prudence in attempting to pass between the cars while they were at rest, under the circumstances, yet if the jury shall also find that if the defendant’s agents, in starting and moving the said train at the time of the injury, had used ordinary prudence and care in giving reasonable and usual signals or notice before putting the train in motion, and in keeping a reasonable lookout, the injury would not have occurred, then the plaintiff's want of care and prudence in attempting to cross between the cars (if the jury shall find the same proved), would not in law exonerate the defendant from responsibility in this action.”

It will be perceived that this instruction is applied to a case where the negligent act -of the defendant and that of the plaintiff were concurrent in point of time. T,he same rule has been applied to similar circumstances by the Supreme Court ot Missouri, and it was adhered to in a line of cases in that court. But an examination of the cases will show that the rule as declared in the Missouri decisions is not at all sustained by the general line of authorities.

Negligence consists in omitting what it was the duty of the party to do under the circumstances. For example, in the case of Davis vs. Mann, 10 M. & W., 548, where a person had tied a donkey so that it stood in the road, and afterwards the driver of a wagon drove carelessly along the same road so that he killed the donkey, the carelessness and negligence of the person who tied him there iu the road was held not to be contributory. The negligent act of the owner of the animal was prior in time to that of the driver of the wagon. The latter saw in the road this animal, and though it had been negligently left there, he had no right, either wilfully or negligently, to drive over it. The negligence of the plaintiff in the case did not, in contemplation of law, contribute to the injury. It was what was called remote. But the reasoning of the case is, that the driver of.the wagon had before him a case which called for a certain degree of care, and he should have acted with reference to the fact that the donkey was standing there. It was, therefore, negligence in him to drive as he did, in view of the circumstance.

There is a line of cases sustaining this principle, and, on the other hand, cases where the acts occur at the same time, so that the defendant has not a case before him in which he has to act with reference to the existence of negligence on the other side. In such a case the negligence of the plaintiff is contributory. Both are the effective cause of the injury that happened.

We find this rule very well stated in the case of Trow vs. Vermont Central R. R. Co., 24 Vermont, 494, which I cite, not on account of its special authority, because it is one of a numerous line of cases, but because it states the principle so clearly. Having cited some authorities, the court says: .

“ This leads our investigation to the question whether an action can be sustained when the negligence of the plaintiff and the defendant has mutually co-operated, in producing the injury for which the action is brought. On this question the following rules will be found established by the authorities. When there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained. In the use of the words ‘ proximate cause ’ is meant negligence occurring at the time the injury happened. In such case no action can be sustained by either, for the reason ‘that as there can be no apportionment of damages, there can be no recovery.’ So where the negligence of the plaintiff is proximate, and that of the defendant remote, or consisting in. some other matter than what occurred at the time of the injury, in such case no action can be sustained for the reason that the immediate cause was the plaintiff himself. Under this rule falls that class of cases where the injury arose from the want of ordinary or proper care on the part of the plaintiff at the time of its commission. These principles are sustained by Hill vs. Warren, 2 Stark, 377; 7 Met., 274; 12 Met., 415; 5 Hill, 282; 6 Hill, 592; Williams vs. Holland, 6 C. & P., 23. On the other hand, when the negligence of the defendant is proximate, and that of the plaintiff remote, the action can then be well sustained, although the plaintiff is not entirely without fault. This seems to be now well settled in England and in this country. Therefore if there be negligence on the part of the plaintiff, yet if, at the time when the injury was committed, it might have been avoided by the defendant in the exercise of reasonable care and prudence, an action will lie for the injury. So in this case if the plaintiff were guilty of negligence or even of positive wrong, in placing his hors© in the road, the defendants were bound to the reasonable exercise of care and diligence in the use of their road and management of the engine and train, and if for the want of that care the injury arose, they are liable. Such is the case of Davis vs. Mann, 10 M. & W., 548, where one unlawfully left his fettered donkey in the highway, and it was killed by the negligence and carelessness of the defendant in the management of his horses and wagon, Lord Abinger held, that he might recover, though the animal was improperly there.’”

The principle then is, that the situation presents to the defendant an occasion for a certain degree of care measured by the circumstances, one of which is that he sees that there is a person or an animal in danger, no matter whether they are there by carelessness or not, and it is his business to exercise care with reference to that situation. In such a case the fault of the plaintiff is held not to be contributory. The injury is the result of the carelessness of the defendant.

When, however, the two circumstances occur at the same time, the defendant is not charged with the duty of taking care of the plaintiff, inasmuch as the sudden occurrence of the plaintiff’s act gives him no opportunity to do so. The two acts of negligence being concurrent, each is held to contribute to the result.

Applying this rule to the facts of this case, we find a personfengaged in the very act of crossing this train — climbing over between the buffers — at the moment when this defendant carelessly started the train without notice.

For these reasons, and upon these principles, we feel compelled to send the case back for a new trial. There was error in this instruction.  