
    MATTHEW PABST vs. BALTIMORE AND OHIO RAILROAD COMPANY.
    At Law. —
    No. 11336.
    I. In cases tried under the common law, the refusal of the court to set aside a verdict for excessive damages cannot be alleged for error in the appellate court. The decision of the court below is final.
    II. The Revised Statutes, sections 804 and 805, have changed this rule, so that when such a motion is heard upon the minutes of the judge who tried the case, and denied, an appeal to the general term may be taken upon a case to be settled by agreement of the parties.
    III. The plaintiff’s wife was a passenger on defendant’s railroad train from Baltimore to Washington. When near its depot in the latter city, “Washington” was called by some one. She inquired of another passenger if they were in Washington, and was answered in the affirmative. She then prepared to leave the train. The night was dark. The announcement of “Washington” was not countermanded. No warning was given to passengers not to leave, and several passengers in fact left it. Plaintiff’s wife lived near the depot, and had frequently been on the defendant’s road. She was seen to go out of the car door, when the train started and moved into the depot. She was afterward found lying on the track about two squares outside of the depot, so much injured that her death ensued in about ten days. This action is by the husband for the loss of service. The judge instructed the jury that the passenger had aright to presume that the train had stopped, and that the cry of “Washington” was made by the agent of the company. That it was the duty of the company to counteract a false proclamation of their arrival and to keep an agent in their reach to advise passengers of the truth or falsehood of a proclamation so made, or else the company would be derelict in its duty, and chargeable with the consequences. This ruling was held to be erroneous, and a new trial granted.
    STATEMENT OP THE CASE.
    This action was instituted by the plaintiff to recover damages for injuries sustained by Ms wife while a passenger on defendant’s railroad, in consequence of which she soon afterward died; and as is set forth in the declaration.
    
      “ By reason whereof he, the said plaintiff, was deprived of all the comfort, labor, benefit, and assistance of his said wife in his domestic and business affairs, which he otherwise might or would have had, and he, the said plaintiff, was thereby then and there forced and obliged to pay, lay out, and expend, and hath necessarily paid, laid out, and expended, divers sums of money in providing for medicines and medical and surgical attendance, and in and about her burial, and had also divers other expenses amounting, to the sum of about $1,000, and suffered great mental agony in consequeuce of the great suffering and death of his said wife.
    “ Wherefore, the plaintiff claims damages in the sum of $25,000 and costs of suit.”
    The bill of exceptions presents the factsof the case asfollows:
    “ The plaintiff to maintain the issue on his part joined, offered evidence tendiug to show that, on the 2d day of December, A. D. 1872, his wife purchased at defendant’s depot in Washington City a return-trip ticket from Washington to Baltimore and back; that she went to Baltimore and returned on the same evening to Washington; that,in approaching the depot at Washington, late in the evening, the train stopped some distance from the depot and ‘Washington’ was called by some one, whereupon plaintiff’s wife inquired of one of the witnesses, also a passenger, if they were in Washington, and upon his replying in the affirmative, prepared to leave the car; that the night was dark, so that the location of the train could not be ascertained by looking out of the window; that the announcement of Washington was not countermanded, and there was no warning given to passengers not to leave the train; that mauy passengers in fact left it, among them the plaintiff’s wife, -who was seen to go out of the car door, and before her daughter who was with her had time to get out of the car the train suddenly started again and moved into the depot; that the plaintiff’s wife was afterward found lying by the track near E street, about two squares outside of the depot, with the toes of her right foot crushed by the wheel of the car and the heel of her left foot injured; that partial amputation of the right foot was made. In about ten days lock-jaw set in, and that her death ensued as the result of her injuries, on the 3d day of January, 1873. The plaintiff further offered evidence tendiug to prove the expenses he was subjected to by the accident and the value to him of his wife’s services; and that saiu expenses and the cost of employing another person to do the work and service his wife had before done, about his house, was about $500. It further appears from the plaintiffs testimony, that he has for some years kept a saloon and restaurant on New Jersey avenue, a short distance south of the defendant’s passenger depot, and that his wife has often traveled over defendant’s road and was familiar with the depot and its surroundings.
    After the plaintiff had closed his testimony, the defendant offered evidence, tending to show that the train upon which the plaintiff’s wife was, on the occasion in .question, was the New York through-express train, and that it did not, in fact, stop between Bladensburg and the passenger depot, in Washington, but only slowed down as it approached said depot; and that the train which stopped on the evening in question, as shown in the testimony on the part of the plaintiff, was another train known as the local express train from Baltimore, which arrived a few minutes after the other, and was detained briefly outside, until the latter could be removed from the depot; that the two trains are made up at and start from the same platform in the station at Baltimore, and with a short interval of time between them ; that, on the evening in question, no officer of the company announced the arrival of the said New York train at Washington, before it reached the depot; nor is it their habit to announce such arrival at all, unless when it takes place late at night and passengers are asleep; that Mrs. Pabst was found by some employés of the defendant, between an outer and inner track, near E street, nearly two squares distant from the depot, as the New York through-train was coming in, and just in the rear thereof, and before the arrival of the second train. Defendant further offered evidence tending to show that Mrs. Pabst was near the rear of the second of four passenger cars; that there was a brakesman between the two front and between the two rear cars, but none between the second, where she was, and the third.”
    Several exceptions were taken to prayers granted and refused, but as the decision of the court in general term was confined to the exceptions to the general instructions of the court below to the jury, the following portions of the charge are all that is necessary to set forth in this statement.
    
      “I hold if the proclamation of arrival at Washington was made, it is to be presumed it was made by an employé of the ■company until the contrary is shown, and if made by other sources than the authority of the company, that it should have been countermanded by the company.
    “In reference to the outcry, if you find from the testimony the train approached the depot and came to a state of rest— for both must combine to justify a passenger in leaving it, I think — and the proclamation was made that it had arrived at Washington by the exclamation 1 Washington,’ the passengers had a right to presume, in the midst of the darkness that surrounded the car at that point of time, and from the fact that the car was at rest, that the train had stopped, that the proclamation proceeded from the mouth of the agents of the company, or the agent of the company. And if it did not so proceed, I charge you that the company held such relation to that train under the law that they should countermand a false proclamation of their arrival. In other words, it was the duty of this company to maintain upon that train, and within the reach of those passengers, an agent that would be able to advise them of the truth or falsehood of that proclamation. And if the proclamation came either from the mouth of their agent, or was unauthorized, but was uncontradicted through their agency, under the law, the company would be derelict in its duty, and chargeable with the consequences. That is the point to which my attention has been particularly called. Now, as you shall find, gentlemen of the jury, in this case, that the train proceeded to the depot without stopping, or on the contrary, that it paused, and a proclamation that they had arrived was made/,von will find for plaintiff or the defendant. It would have been an act of carelessness on the part of the decedent, an act of indiscretion on the part of a passenger to leave the train, or attempt to do so, while in motion ; it would be an act of carelessness and indiscretion on the part of the agents of the company, after having come to a standstill, with a proclamation in the car of arrival, to start up without having a guard against injury. This is all that remains for the court to say in reference to the issue of liability, or otherwise.”
    The jury having rendered a verdict for the plaintiff for $3,568.25, the defendant moved for a new trial upon the bills of exceptions and for excessive damages, which latter question is presented on appeal from the order of the court overruling the motion.
    
      Frederick Schmidt and William F. Mattingly for plaintiff.
    As to appellant’s first point, that the damages awarded by the jury were excessive, it is respectfully submitted that the motion for a new trial for this reason was made under Rule 101. (Sec. 6461, Rev. Stat.) Rule 69 provides that if the motion be overruled and defendant appeal, he shall prepare a case, &c., (sec. 6466.) No case has been prepared, and it is apparent to the court that it cannot tell whether the damages were excessive or not, without knowing what the testimony was. No court in an action of this kind will grant a new trial for excessive damages unless the damages are so large as to show a willful disregard of law, passion, or fraud, on the part of the jury. (Sedgwick on Damages, 601.)
    The damages, in point of fact, are not excessive, but small. In 14 Howard, 486, Phil. & Read. R. R. Co., the court says r “When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. Th e personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence in such case may well deserve the epithet of gross.”. This rule is re-affirmed in 16 Howard, 469, New-World vs. King. And in Laing vs. Colden, 8 Penn. Stat., 479, the court says: “ The slightest neglect against which human prudence and foresight may guard or by which hurt or loss is occasioned will render them liable to answer in damages.”
    The facts in this case conclusively show that the plaintiff’s wife believed, and had every reason to believe, that the train had arrived at the Washington depot. Certainly it was incumbent upon the defendant’s agents when they saw passengers leaving the cars under this impression to have them notified that they were nob in the depot. An ordinary degree of care alone would have required as much. Each case is governed by its own circumstances; but the general tenor of the authorities is that a passenger is only required to exercise such care as a prudent person, under the same circumstances, would be expected to exercise. Certainly, under the circumstances, when “ Washington” was called and the” passengers were leaving, the slightest care would have required that the announcement should be countermanded.
    
      Walter S. Cox, with whom was J. A. Buchanan, of Baltimore, contended that a new trial should be granted for the following reason:
    The law is well settled that, where tho passenger leaves a train without cause or against warning and is injured, he cannot maintain an action to recover for injuries sustained under such circumstances. (See 2d Redfield on Railways, pp. 204, 205, 206, §§ 178,179; Damont vs. New Orleans and Carrollton Railway, 9th Louisiana Annual Reports, 441.) So, also, if the passenger’s want of reasonable care and caution contributed to the injury, he cannot recover. Pittsburgh and, Connellsville Railroad Company vs. McClung, in 2d Redfield’s American Railway Cases, 546, 547, and 56 Pennsylvania State Reports, 294; Lewis vs. B. & O. Railroad Company, 38th Maryland Reports, 588; see Sherman and Redfield on Negligence, § 281, note 3, and p. 336, § 281, citing Forsyth and Albany Railroad, 103 Mass. Reports, 510, where it was held that, where a passenger got off a train without necessity, before it reached the station-platform, and was injured, he could not recover. And the mere announcement of the station does not justify a passenger in getting off the train before it reaches the platform. Sherman and Redfield on Negligence, p. 336, § 281, note 3, citing Bridges vs. North London Railway Company, 6th Queen’s Bench Reports, 377.
    The verdict of the jury, awarding $3,568.25, was excessive and against the law of the case as stated to the jury by the court below. See Sherman and Redfield on Negligence, p. 333, note 1, pp. 351, 352, § 260, and cases cited in note 1; Baker vs. Bolton, 1st Campbell, 493; Lockwood Cary and Wife vs. Berkshire Railroad, 1st Cushing’s Reports, 451; Sago and Portsmouth Railroad Company, 4th Allen, 55; Connecticut Mutual Life-Insurance Company vs. N. Y. & N. H. 
      
      Railroad Company, 25th Connecticut Reports, 265; Green vs. Hudson River Railroad Company, 4th Keys, N. Y. Reports, 294, in 41st New York Court of Appeals Reports; 2d Redfield on Railways, 213, § 181; Eden v. Lexington & Frankfort Railroad Company, 14th B. Monroe’s Reports, 204.
   Mr. Justice Wylie

delivered the opinion of the court.

This action was brought to recover damages sustained by the surviving husband in consequence of injuries which happened to his wife on the 2d December, 1872, from the carelessness of defendant’s servants and agents, as alleged, from which she died the 3d of January, 1873. The verdict was in favor of the plaintiff for $3,568.25. Several exceptions were taken to rulings of the court before which the case was tried at circuit, and among them the refusal of the court to set aside the verdict for excessive damages. In cases tried under the common law, the refusal of the court to set aside a verdict on this ground cannot be alleged for error in the appellate court, but the decision of the court below is final. It is claimed, however, that this rule has been changed by the following provision of the act under which this court was established: “The justice who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial on exceptions or for insufficient evidence, or for excessive damages; provided that such motion be made at the same term or circuit at which the trial was had. When such motion is made and heard upon the minutes, an appeal to the general term may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner.”

A bill of exceptions, properly speaking, always relates to some ruling of the court on a question of law. The act of Congress enables tbe court before which the trial was had, to grant a new trial, if it become satisfied that an error in law was committed to which exception was taken at the time. And this it could do under the common law. But a verdict rendered on insufficient evidence or for excessive damages, is the error of the jury as to evidence, and whether erroneous for either of these causes, is a question which can be judged of only from the evidence. It is not possible, therefore, for an appellate court, unless it have all the facts before it, to say whether the verdict was sustained by the evidence or not. Even were all the evidence given at the trial taken down in writing and sent up with the record, the appellate court could not determine the question. For that would be to usurp the province of the jury in finding what facts have been established by the evidence. Ad questionem faeti non respondentjudiees; ad questionem legis non respondent juratores. But if a case have been settled by agreement of the parties stating, not the evidence in the cause, but facts admitted on both sides to be established by the evidence, the appellate court could as well decide the motion for a new trial as any ■other question of law, for the trial arises out of the facts. Where the act of Congress, therefore, says that when a motion ■for a new trial has been made and heard upon the minutes of the court below, to set aside a verdict and grant a new trial on exceptions, or for insufficient evidence, or for excessive damages, and, on an appeal from the decision made, a bill of exceptions, or case shall be settled in the usual manner, it intends that the questions of law involved in the bill of exceptions shall be taken up in that shape: and that the motion for a new trial, for insufficient evidence or for excessive •damages, must rest upon an agreed case.

We have dwelt upon this point at some length, for the reason that the act of Congress on the subject is not expressed with all the clearness that one would desire, and because different views have been entertained as to its construction. The facts established by the evidence in the present case, not having been settled by counsel, we think we have no proper means furnished us from which to judge whether the verdict, in this instance, was excessive or otherwise.

After the evidence on both sides was closed, several prayers were presented to the court by the defendant, and one only by the plaintiff. The plaintiff’s prayer was granted, and some of the defendant’s were granted, and others refused. We do not deem it necessary, however, to examine the rulings of the court in answer to these several propositions of law in their order, since we are of opinion that a new trial ought to be granted, for what we consider an erroneous instruction contained in the charge, and the substance of which, seems to pervade all the instructions as to which exceptions were taken by the defendant. That part of the charge to which we refer more particularly is in these words: I hold, if the proclamation of arrival at Washington was made, it is to be presumed it was made by an employé of the company until the contrary is shown, and if made by other sources tham the authority of the company, that it should have been countermanded by the company.” The same idea pervades, and is much enlarged upon, in a subsequent part of the charge,, from which we make one further extract, as follows: “ And if the proclamation came either from the mouth of their agent (the company’s,) or was unauthorized, but was uncontradicted through their agency, under the law, the company would be-derelict in its duty, and chargeable with the consequences.” To the law, as thus ruled by the court, exception was taken at the time by the defendant’s counsel. The court by these-rulings took away from the jury even the question of contributory negligence on thé part of the deceased. Under circumstances very similar to those of this case, the Court of Exchequer Chambers, in Bridges vs. The North London Railway Company, L. R., Q. B. 6, p. 377, ruled that it was the duty of the court to instruct the jury, as matter of law, that the plaintiff was not entitled to recover. The facts of that case, as they are correctly set- out in the head-notes of the report, were as follows: In an action against the defendant by the executrix of B to recover damages for his death, alleged to have been caused by the defendant’s negligence, the following evidence was given on behalf of the plaintiff:

B was a passenger by the defendant’s railway from London to Highbury. He was a season-ticket holder, and traveled to and fro every day; he was very short-sighted. The train consisted of six carriages. B rode in the middle compartment of the last carriage. On approaching Highbury station from London, the railway passes through a tunnel. At the further end of the station is a broad platform far exceeding the length of the train; then a narrow platform, about 12 feet of which is within the tunnel; then a slope of 10 feet from the platform to the level of the rails, and beyond this a heap of hard rubbish extending some way into the tunnel about a foot lower than the platform. The train stopped at the station, the last two carriages being still in the tunnel, and the carriage in which B rode being opposite the heap. A passenger who rode in the next carriage, as the train stopped, heard “Highbury” called out at the far end of the platform. . He got out, and then heard a groan in the tunnel, and on going back he found B lying on the heap with his legs between the wheels of the carriage, but they had not passed over him. The passengers also heard “ Keep your seats ” called out, and the train then moved forward toward the platform. One of B’s legs was broken, and he had received internal injuries, of which he died; it was after dark. There was a lamp within the tunnel near the entrance, about 28 feet from where B was found; the tunnel was-full of steam.

The judge non-suited the plaintiff, giving her leave to move to enter a verdict, “if the court considered there was any evidence of negligence on the part of the defendants which could properly be left to the jury.”

The Court of Q. B. refused a rule.

On appeal to the Exchequer Chamber, it was held by four of the judges that there was not evidence on which a jury could properly have found for the plaintiff, and the non-suit was therefore right. • The same judges held that the question of whether there was contributory negligence on the part of the deceased was still open on the above reservation.

Three of the judges contra on both points.

By the whole court, that the calling out the name of the station is not in itself an invitation to the passengers to alight; whether it is so or not must depend on the circumstances of each particular case.

In the ease just cited, the train had arrived at its destination, but the carriage in which was the passenger had not come up to the platform and stopped. It was a dark night, and the passenger in question was near-sighted. . Proclamation was made by some one at the far end of the carriage, “ Highbury.” It did not appear by whom this proclamation was made, but it was not contradicted, and was probably uttered by some agent of the company. Thereupon the passenger in question left his seat and proceeded to alight. He fell upon a heap of rubbish, with his legs in front of one of the wheels. Another proclamation was then made to the passengers in the train, “Keep your seats,"-and the train moved forward, crushing the man’s legs and inflicting other injuries, of which he subsequently died. Four of the seven judges of the Court of Exchequer Chamber held that the decision of the court below directing the plaintiff to be non-suited, without so much as leaving the question of negligence to the jury, was correct; and all seven of them held that the calling out the name of the station was not in itself an invitation to the passengers to alight. In this case all the authorities previously decided in England, bearing upon the question, were cited; the cause was fully argued, and the judges all gave their opinions seriatim.

We all know, from our own experience, that it is customary for conductors to announce the name of a station to the passengers before the platform has been actually reached, so that they may have time to gather up their impedimenta, put on their over-garments, and in other respects prepare to alight. We know, also, how often it happens that in approaching the station, particularly in a city, the trains stop for a brief period before reaching the landing or depot. The shifting of trains from one track to another, or other causes produced by the necessities of trade in a large city, where it is important that the public highways should be obstructed as little as possible by the business of railways, render such stoppages inevitable. Men who travel are presumed to be reasonable beings, and to exercise ordinary care for the safety of their own persons, and yet wherever men are found, whether at home or abroad, accidents do happen to some, which are the direct results of their own imprudence. In such cases it would not be just to require others to make them compensation in damages. If men are to be transported as freight upon railways and rivers, and their carriers held to the responsibility of insurers, they should suffer themselves to be handled as freight, and wait in their seats till they can be landed upon the platform by the agents of the transporters. Where intelligence exists, however, there must be accountability to itself at least, for the consequences of its own imprudence. While we hold that railway companies should be held to the full measure of their responsibilities, yet it must be admitted that their business is of incalculable advantage to the public. They should be made to suffer, in damages, for their own negligence or mismanagement, where it is proved, but it is the duty of courts to hold the scales of justice even in the trial of their causes, where juries are. so liable to be led astray by prejudice against them, or by sympathy and favor for the private citizen.

Cartter, Ch. J., dissenting.  