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Vol. II.)

CLEVELAND, COLUMBUS, AND Cincinnati R. R. Co. o. CRAWFORD.

(No. 5.

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negligence on his part, which will prevent a recovery." In refusing to charge the above, as requested, it is claimed there was error.

After defining ordinary care, such as the law required the plaintiff's intestate to exercise, the court did charge the jury, however, as follows:

“ And therefore if the intestate, before going upon the crossing, did not look up and down the track to see whether a train was approaching, or if he did not use his ears and eyes so far as he had an opportunity to do so, or if his hearing was defective, or if the noise of the wagon prevented his hearing in any degree, you will take the same into consideration, or any other circumstances calculated to influence the conduct of a prudent person, bearing in mind that whatever the facts and circumstances in the case may be, the proposition you have to determine is, whether Mr. Sipes exhibited ordinary care under the circumstances. If, in the exercise of common prudence and caution, the intestate could have avoided the accident, then the plaintiff cannot recover.

If the intestate, under a mistaken judgment that he could do so safely, after seeing the train, and before going upon the crossing, undertook to cross ahead of the train, this would be such negligence as would defeat a recovery."

A similar request was refused, and a similar charge was given in the Eleanor Sipes case.

In the presentation of these cases, as well as two other cases which have been considered in connection with them, able arguments and many authorities have been made and cited, pro and con, on the question, whether an omission to look and listen for an approaching train, before attempting to cross a railroad track, is, as matter of law, such negligence on the part of the person attempting to cross as will preclude his recovery for an injury done by a passing train while crossing the track.

Within the compass to which I intend to limit this opinion, it is impossible to review the cases cited, but nevertheless it is proper to acknowledge the substantial aid we have received from counsel and adjudicated cases, in coming to the conclusions about to be announced.

It is unquestionably true that ordinary prudence requires a person in the full enjoyment of his faculties and senses to use them, before attempting to cross a known railroad track, for the purpose of discovering and avoiding danger from a passing train ; and a failure to do so, without a reasonable excuse therefor, is negligence, and will defeat an action for an injury to which such negligence contributed.

This rule does not, in anywise, impinge on the doctrine which recognizes the right of a traveller on a public highway to the use of the crossing as coördinate with the right of the railroad company, but it results as a necessity from the difference of the modes in which the respective roads are made subservient to the public use.

It must be observed, that the rule as above stated does not preclude a recovery in all cases where the injured party omits to employ his senses to discover and avoid injury, even though the omission may be regarded as negligent; but only in those cases where the omission contributes to the injury. The law in cases of mutual negligence is, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of

1 See ante, page 213 et seg.

CLEVELAND, COLUMBUS, AND CIncinnati R. R. Co. v. CRAWFORD. (No. 5.

Vol. II.)

the defendant's negligence, he is entitled to recover. Timmons v. Central Ohio R. R. Co. 6 Ohio St. 105. It is no case of mutual contribution to an injury where the injured party could not, by the exercise of due care, have avoided the consequences of another's carelessness.

Again, the failure to look or listen for an approaching train, though such failure may contribute to the injury, cannot, under all

circumstances, be regarded as negligent. Whether it is so or not depends on the circumstances of the particular case. For instance, other dangers, as well as those from the approaching train, may be impending, and they may be such as demand the entire attention of the person about to cross the track ; and if so, a prudent person would be excused from looking or listening for the train. Indeed, the exercise of ordinary care to avoid an injury is all the law requires; and no one can be held to be negligent who exercises such care. True, when the danger is imminent and human life is at stake, great precaution should be exercised; but this is only ordinary care under the circumstances; because persons of ordinary prudence, under such circumstances, exercise great caution and care. When, therefore, a person about to cross a railroad track, under a given state of circumstances, exercises that degree and amount of care which prudent persons usually exercise under like circumstances, he is without fault. In other words, when the circumstances are such that prudent persons would not ordinarily look or listen for an approaching train, there is no negligence in omitting to look or listen.

If this view be correct, it is plain as a general rule, that whether contributory negligence existed or not is a mixed question of law and fact; that is to say, a fact for the jury to find from such testimony as the law regards as competent to prove it; and to be found in accordance with such rules as the court may give to the jury for their guidance.

Where, however, all the material facts in the case are undisputed, or are found by the jury, and admit of no rational inference but that of negligence, or that of due care, it is no doubt the duty of the court to say to the jury, that, as matter of law, the facts so appearing amount to negligence, or to due care, as the case may be ; as it would be the duty of the court to determine, as a question of law, what judgment should be rendered upon a special verdict. But, on the other hand, if the testimony is conflicting, the facts uncertain, or the proper inferences to be drawn from the facts and circumstances doubtful, then it would be error for the court to withdraw the case from the jury, or direct them to return a particular verdict.

From what has been said, it follows that where a party requests the court upon a hypothetical statement of the case, such as would entitle him to a verdict, to instruct the jury to render a verdict in his favor, it is the duty of the court to instruct the jury to so render their verdict, if they find the facts to be as assumed, provided the assumed statement enbraces all the material facts in the case; but if the statement omits material facts upon which testimony has been offered, and which, if found by the jury to be against the party asking the instruction, would change the result of the case, then the court may properly refuse to give any instruction in relation to the hypothetical case.

When tested by the principles above stated, it is clear that there was

a

Vol. II.)

CLEVELAND, COLUMBUS, AND CINCINNATI R. R. Co. v. CRAWFORD.

(No. 5.

no error in refusing to give the instruction asked for by the defendant below.

It is not true, as matter of law or fact, that the plaintiff's intestate was guilty of negligence which would prevent a recovery, if under any circumstances, without signs and signals, he omitted to use his eyes and ears to the extent of his opportunity, to see, hear, and avoid danger.

In the first place, if the use of his eyes and ears to the extent of his opportunity would not have prevented the collision, he was not guilty of contributory negligence.

In the second place, if the circumstances were such as would have excused a person of ordinary prudence from looking or listening for the approaching train, he was not guilty of negligence at all.

In the third place, the qualifying words found in the request to wit, " to the extent of his opportunity” - do not relieve the proposition from objection. It was claimed on the trial, and the testimony tended to prove the fact, that the deceased had no opportunity to see or hear the train until it was too late to avoid the collision. If the jury had so found the fact to be, the verdict should have been for the defendant, according to the request, although the exercise of due care on the part of the intestate "to the extent of his opportunity,” could not have avoided the consequences of the defendant's negligence. This, as we above stated, is not the law.

4. The original actions were prosecuted under the statute for the benefit of the next of kin of the intestates. The next of kin were their four children, three of whom were with their parents in the wagon at the time of the collision. On the trial, defendant requested the court to charge the jury that if the persons for whose benefit the actions were brought were guilty of a want of ordinary care which contributed to the injury, a recovery could not be had for their benefit. This request was properly refused ; because, first, the statute gives the right of action to the personal representative upon the same conditions that would have entitled the party injured to an action if death had not ensued. If Mr. and Mrs. Sipes had not died, and had not been guilty of contributory negligence, their right of action for the negligence of the defendant would not have been defeated by reason of the negligence of third persons, although such persons may have stood to them in the relation of next of kin.

Again, the amount recovered in such cases is a gross sum, which the statute directs to be distributed to the next of kin, in the proportions provided by law in relation to the distribution of personal estates. If contributory negligence on the part of some of the next of kin would defeat a recovery as to them, it would also defeat a recovery for the benefit of those who in nowise contributed to the injury.

We find no error in these records for which the judgments, or either of them, should be reversed.

Judgment affirmed. WHITE and Rex, JJ., concurred.

DAY, C. J., and WELCH, J., concurred in the syllabus, but dissented from the judgment, on the ground that the verdicts were against the evidence.

Vol. II.)

CHESAPEAKE BANK 0. FIRST NATIONAL BANK.

(No. 5,

COURT OF APPEALS OF MARYLAND.

(To appear in 40 Md.)

NATIONAL BANK. - ATTACHMENT ON WARRANT ISSUED BY STATE COURT

AGAINST NATIONAL BANK, ILLEGAL. - VALIDITY OF SEC. 2 OF ACT OF MARCH 3, '73.

CHESAPEAKE BANK v. FIRST NATIONAL BANK.

An attachment on warrant issued by a state court to affect the funds of a national bank

is illegal and void, being in violation of section 57 of the Act of Congress, approved June 3, 1864, as amended by section 2 of the Act of Congress, approved March 3, 1873, - the latter section providing, “ That no attachment, injunction, or execution shall be issued against such (banking) association or its property, before final judgment in any such suit, action, or proceeding in any state, county, or municipal court." The second section of the Act of Congress, approved March 3, 1873, amending section

57 of the Act of Congress, approved June 3, 1864, is constitutional and valid, being a provision to promote the efficiency of the national banks in performing the functions by which they were designed to serve the government, and to protect them not only against interfering state legislation, but also against suits or proceedings in state courts, by which their efficiency would be impaired. APPEAL from the superior court of Baltimore city. The case is stated in the opinion of the court. The cause was argued before Bartol, C. J., Miller, Alvey, and Robin

son, J.

George H. Williams, for the appellant. While it is not denied that Congress has full power to charter banks as and for instrumentalities of the government, and to prevent state sovereignties from taxing them or otherwise interfering with their existence, yet it is not within the power of Congress to clothe them, as to their contracts and dealings with the world, with any special immunities and privileges exempting them in their said trade and intercourse with others from the laws and remedies applicable in like cases between other citizens. National Bank v. Commonwealth, 9 Wallace, 353.

The power to create these banks is justified as an act of constructive power; it is not pretended there is any express power given, but as where express powers are given, e.g. to lay and collect taxes, imports, &c., they are restricted to uniformity, they cannot create a favored contracting class in society not subject to the uniform rights and remedies as between other citizens of the Union. The order of the court below quashing the attachment should be reversed and a procedendo awarded. A. Stirling, Jr., contra. The 57th section of the Act of 1864, and the

, 2d section of the Act of 1873, are constitutional.

The appellant admits the constitutionality of the national banking act generally, but contends that the sections above mentioned, or at least section 2 of 1873, is unconstitutional, as giving the associations organized under the Act of 1864 privileges or immunities different from those of citizens generally in the states where their business is carried on.

If the constitutionality of the acts of 1864 and 1873, generally, be conceded, then under all the principles governing the construction of the

Vol. II.)

CHESAPEAKE BANK v. FIRST NATIONAL BANK.

[No. 5.

powers of Congress, the provisions of the 57th section of the Act of 1864, and the 2d section of the Act of 1873, are on their face evidently appropriate and necessary, to carry out the powers which are adınitted to justify the law generally; and not only this, but are wise and beneficial, and under no principle laid down by the court of appeals or the supreme court, can they be held unconstitutional. M'Culloch v. Maryland, 4 Wheat. 316; Fletcher v. Peck, 6 Cranch, 87; Livingstone v. Moore, 7 Peters, 469; National Bank v. Commonwealth, 9 Wall. 353; Veazie Bank v. Fenno, 8 Ib. 533; Hepburn v. Griswold, Ib. 603; State v. Buchanan, 5 H. & J. 362; Mayor, fc. v. Board of Police, 15 Md. 376.

MILLER, J., delivered the opinion of the court.

The appellant on the 18th of September, 1873, caused an attachment on warrant to be issued out of the superior court of Baltimore city to affect the property and credits of the First National Bank of the City of Washington, District of Columbia, as a non-resident debtor, which was laid in the hands of the First National Bank of Baltimore, as garnishee. In October following, the garnishee filed a motion to quash for reasons alleged, and from the judgment of the court quashing the writ this appeal is taken. It is conceded the decision of the superior court was based upon the first reason stated in the motion, as follows:

That said First National Bank of Washington was, before said attachment and at the time of the issue thereof, and still is an association for the purpose of carrying on the business of banking, organized duly under the Act of Congress of June 3, 1864, and that by the 2d section of the Act of Congress, approved March 3, 1873, it is enacted that the 57th section of the first mentioned act be amended by adding thereto the following: “That no attachment, injunction, or execution shall be issued against such association or its property before final judgment in any such suit, action, or proceeding in any state, county, or municipal court," and that by the force of said section of said acts, the said attachment is illegal and void.

We shall not stop to inquire what is the true construction of the original 57th section of the Act of 1864, because it is clear the case before us is embraced by the terms of the amendment thereto made by the Act of 1873. The constitutionality of the national banking acts is admitted, their purpose being, as expressed in the title to the original Act of 1864, “ To provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof;" but it is insisted these particular provisions or features of them are unconstitutional and void. The argument is that it is not within the power of Congress to clothe these banking associations, as to their contracts and dealings with the world, with any special immunities and privileges exempting them in their trade and intercourse with others, from the laws and remedies applicable in like cases to other citizens. But the power to create these banks as instrumentalities of the government, being, as it confessedly is, within the rightful powers of Congress, we cannot say that provisions like these, defining in what tribunals they shall be sued and to what suits or actions they shall be subjected, are not appropriate and necessary to carry out this admitted power. It must plainly appear that such provisions are inappropriate and unnecessary for this purpose, in VOL. II.

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