
    Frank Springman, by his Next Friend, etc., vs. Baltimore & Potomac R. R. Co.
    Law.
    24,470.
    Decided April 19, 1886.
    The Chibe Justice and Justices James and Merrick sitting.
    In an action against a railroad company for injuries received by being run over by one of its trains, a new trial will be granted when the charge of the court tends to create in the minds of the jury the impression that they may go beyond the general inquiry as to reasonable care and diligence and establish some particular standard of their own.
    Motion by defendant for new trial on exceptions.
    The Case is stated in the opinion.
    Linden Kent for plaintiff:
    The rights of a railroad company must he construed as to least impair the rights of the public. The right of the public to the use of the streets is prior and paramount. Balt., etc., R. R. vs. Dennison, 3 Mao A., 253.
    The act of Congress of February 5, 1861, provides that the track shall he constructed at crossings so as not to impede the passage or transportation of person or property along the same. Nottingham vs. Balt., etc., R. R. Co., 3 Mac A., 525.
    Where there is a conflict of rights between the public and the railroad company, the railroad company and not the public is the trespasser.
    Such uses of streets by private corporations are lawful only because specially authorized, and while so conducted as to be harmless to others; but they become trespasses when an injury occurs, whether resulting from negligence or not. Disk of Col. vs. Balt., etc., R. R. Co., 1 Mackey, 314. See also Phila., etc., R. R. Co. vs. Troutman, 6 Am. & Eng. R. R. Cas., 117; Erick vs. St. Louis, etc., R. Co., 8 Am. & Eng. R. R. Gas., 280.
    Even although plaintiff had been a trespasser, the railroad company would have been liable for any injury resulting to him from its own negligence; but where the rights are mutual, or that of the plaintiff — as in this case — paramount, there is a higher degree of care imposed upon the company. Sioux City, etc., R. R. Co. vs. Stout, 17 Wall., 657.
    A party approaching a railroad crossing at a point where the view is obstructed, is justified in acting upon the assumption that the ordinary and proper signals or warning of the approach of trains are given; and, having been lulled into a feeling of security by the defendant’s negligent failure to give such signals, and having suffered an injury, may have his action. Phila., etc., R. R. Co. vs. Ha^an, 47 Pa. St., 244; Ernst vs. Hudson River R. R. Co., 35 N. Y., 1; Balt., etc., R. R. Co. vs. Trainor, 33 Md., 542.
    When the view of the track is obstructed, or when for any reason there is an inadequate lookout, this is a circumstance which demands of the employees of the railroad company the exercise of increased vigilance. Cordell vs. R. R. Co., 70 N. Y., 119; Ind. & St. Louis R. R. Co. vs. Stobles, 62 111., 314; Chicago, etc., R. R. Co. vs. Payne, 59 111., 534.
    If railroad companies elect to dispense with flagmen or gatekeepers at street crossings, it does not relieve them from the responsibility of providing against the unusual risk of tbeir own creation. Pa. E. E. Co. vs. Matthews, 36 N. J. L., 535.
    It is not contributory negligence per se to attempt to cross a railroad track at a regular crossing, without waiting until a train that has just passed is far enough away to allow sight of a train coming up in a contrary direction. Phila., etc., E. E. Co. vs. Carr, 99 Pa. St., 505; Moore vs. Phila., etc., E. E. Co., 32 Alb. L. J., 98.
    Where the defendant might, by the exercise of ordinary care and prudence, have avoided the consequence of his negligence, a child non suijtiris will not be prevented from recovering in consequence of its parent’s neglect. Balt., etc., E. Co. vs. McDonnell, 43 Md., 534; McMahon vs. North. Cent. E. Co., 39 Md., 439.
    The American cases generally recognize it as material in actions of this kind, when the negligence of the parent is to be imputed to the infant, that the parent be present when the injury is suffered. Beach, Cont. Neg., p. 131; Holly vs. Boston Gas Light Co., 8 Gray, 123.
    Such is the English rule, that the child must be in the actual custody of the parent at the time. Waite vs. North East. E. Co., Ellis, Bl. & EL, 719.
    In any view, the negligence of the mother in this case could not be considered the proximate cause of the child’s injury. Carter vs. Towne, 103 Mass., 507.
    The rule that in any case the parent’s negligence can be imputed to the child, to defeat an action for an injury received through the negligence of the defendant, is repudiated wholly in the States of Pennsylvania, Virginia, Vermont, Alabama, Tennessee, Ohio, Connecticut, Missouri, Nebraska and Texas. Beach, Cont. Neg., p. 137, and cases there cited; Thomp., Neg., p. 1184, § 34, notes, where the authorities are reviewed, and the rule laid down in Hartfield vs. Eoper, 21 Wend., 615, discussed.
    Few States have followed' the rule there laid down, and the recent cases in New York have very much qualified it. See, also, Whart. Neg., § 312,
    
      Enoch Totten for defendant:
    The question here is: Was the company, by its agents, guilty of any breach of duty to the plaintiff when crossing the track? If nothing was done by the person controlling the engine to cause the injury, no cause of action can arise. Phila., etc., R. R. Co. vs. Spearen, 41 Pa. St., 300.
    Where an accident happens, resulting in a personal injury, the proper inquiry is not whether the accident might have been avoided; but whether, in the light of all the circumstances, the railroad company exercised reasonable care and diligence to guard against danger. Beatty vs. R. R. Co., 8 Am. & Eng. R. R. Gas., 210.
    The negligence of the parent is imputable to the child, if it is not of an age mature enough to take care of itself. 2 Rorer, 1012 ; McMahon vs. North. Cent. R. Co., 39 Md., 452; Balt., etc., R. R. Co. vs. State, 30 Md., 41.
    If it is mature enough to .take care of itself, it must be held to responsibility for lack of ordinary care and prudence. 2 Rorer, 1012; McMahon vs. North. Cent. R. R. Co., 39 Md., 449.
    A boy eight years old was ordered off an engine by the fireman, and in jumping fell. The engine was started at the moment by the engineman, and the boy was hurt. Held, that the boy could not recover. Chicago, etc., R. Co. vs. Smith, 46 Mich., 504. See, also, Moore vs. Pa. R. R. Co., 99 Pa. St., 301.
    The necessity for flagmen or other precautions was not a question for the jury. Dyer vs. Erie R. Co., 71 N. Y., 228; Beisiegel vs. N. Y. Cent. R. R. Co., 40 N. Y., 9; Weber vs. N. Y. Cent., etc., R. R. Co., 58 N. Y., 451; Pakalinsky vs. N. Y. Cent., etc., R. R. Co., 82 N. Y., 421; State vs. R. R. Co., 41 Md., 16; Cliff is. Midland R. Co., L. R., 5 Q. B., 258. See, also, Oulhane vs. R. R. Go., 60 N. Y., 133; Reynolds vs. R. R. Co., 58 N. Y., 248 ; Ellis vs. Great West. R. Co., L. R., 9 C. P., 554; Wharf, Neg., § 198 ; Morrissey vs. East. R. R. Co., 126 Mass., 311; Stubley vs. London, etc., R, Co., L. R., 1 Exch,, 13.
    
      In any event there must be proof of the necessity of such precautions as are insisted upon as essential.
    It has been held that where the question is whether or not a flagman should be stationed at a particular “crossing,” it must be submitted to the jury on proofs that this was necessary. Kinney vs. Crocker, 18 Wis., 15 ; Butler vs. R. R. Co., 28 Wis., 481; Ferguson vs. R. R. Co., 63 Wis., 148; Haas vs. Grand Rapids, etc., R. R. Co., 41 Mich., 401.
   Mr. Justice Merrick

delivered the opinion of the Court.

This was an action brought to recover damages for injuries received by the plaintiff, a child who attempted to cross the tracks of\the defendant’s railroad between B street south and Maryland Avenue, not at the regular crossing of the street, but very near thereto.

A burden train had passed on the south track, and coinci-. dently with its passage an engine and tender were passing on the north track from the depot out towards the coaling yard. Immediately after the burden train had passed in one direction, the child, about ten years of age, ran directly across the south track and encountered the engine and tender, which were going in the opposite direction along the north track, and was stricken by it, thrown down, and his feet cut off by the wheels of the engine, which passed over them.

He brought this action for a recovery, and the usual contention about negligence on the part of the defendant, and contributory negligence on the' part of the plaintiff, took place. In the progress of the cause various instructions were asked for and prayers were granted on the part of the plaintiff; and in addition to the prayers asked on the part of the plaintiff, the court, of its own motion, gave a certain instruction and charge to the jury. And the question made here is: Was there or not error in the instructions and the charge granted by the court ?

There is always difficulty with the courts in determining and settling the rule of law in cases of this sort. For while the rule of law in the abstract is very clear, yet as applied to the question of diligence in particular cases it becomes so far a mixed question of law and fact that the provinces of the court and of the jury respectively run gradually into each other ; and it has been found almost impossible to give exact definitions, in the particular case, of where the province of the jury exclusively begins and that of the court exclusively ends.

But while there is this difficulty, courts have always maintained that it is the duty of the court to declare the rule which the law imposes as nearly as may be, and to present 'to the minds of the jury clearly the proposition that they must limit themselves, in their inquiry into the facts of the cause and in considering the question of negligence, to that degree of care and attention which experience has foinffijqaspnalde'and necessary to prevent inju?jrfo“ofEers ; and that the court must carefully guard the jury against setting up any standard of their own in the case other than this one; or, as the rule is expressed in Dyer vs. Erie R. Co., 71 N. Y., 231, it would be erroneous to submit to the jury to find what signals, in their opinion, were necessary, and should have been given by the company for the purpose of avoiding the particular catastrophe.”

And wherever it appears from the whole tenor of the charge that, whether designedly or by inadvertence, the court has gone so far as to leave an impression upon the mind of the jury that they have a right to go beyond the general inquiry as to reasonable care and diligence, and to establish for themselves a particular standard of diligence, there is error.

Now, when you come to analyze the charge which was made by the judge in this case, and compare it with the instructions which were specifically asked for, while it may be difficult to put the finger upon any particular part of the charge, disconnected from the rest, or upon any particular proposition in the charge when disconnected totally from the others, which you could say was erroneous, yet, when you take the whole charge together, the peculiarity of the language used by the judge, the multiplicity of propositions which are grouped together in the instructions as asked, and in the voluntary charge or instruction which was granted, the mind cannot escape the conclusion that there was an impression made upon the jury that they had the right to fix some standard other than the common standard of ordinary prudence; that they had a right to fix for themselves some standard of prudence which the railroad company jhnuldresort to, and to judge the case and the rights of the parties by that standard of their own creation.

It doubtless was not the real intention of the judge to produce that impression upon the minds of the jury; but nevertheless it seems to us, upon a careful consideration and grouping of the whole matter of the charge, that such was the result, and there is an eminent probability that the jury was misled by the nature of the charge as to the strict limitations of their duty.

The court feels itself constrained, without specific criticism upon any precise portion of the charge, to reverse the judgment, for the reason that it seems to us the jury were probably misled by the nature, terms and scope of the whole charge. It was so framed that they did not probably appreciate the limitations which ought to have been the guide of their conduct in the particular instance.

We feel the less hesitation, inasmuch as the judgment thus reversed is not a definitive judgment, but it remains open to both parties to try the case de novo with very little practical prejudice. That ultimate justice will be done we feel confident.

A more careful investigation of the cause will enable whoever is in the right to have that right successfully maintained and vindicated.

For these reasons the judgment is reversed and a new trial ordered.  