84 Md. 19 | Md. | 1896
delivered the opinion of the Court.
This is an action to recover damages for injuries alleged by the plaintiff to have been sustained by him by reason of the wrongful and negligent act of the defendant. The defence is contributory negligence. The controlling question is whether the Court below was right in instructing the jury: first, that there was no evidence in the case of negligence on the part of the defendant; and, second, that the alleged injury was the direct result of négligence on the part of the plaintiff himself, and that therefore their verdict must be for the defendant.
The principles of law applicable to cases like this have been frequently and so fully settled in this State by the decisions of this Court, that they require no farther discussion at this time. The only difficulty is to ascertain and fix
Having thus briefly alluded to the general principles, we will ascertain what is the act of the plaintiff relied on by the defendant to show contributory negligence. To do this will require a brief recital of the evidence.
The defendant company is the owner of a coal mine in Allegany County which is operated by means of a tram-road running through a tunnel which is constructed in the mine. Just before the happening of the accident by which the plaintiff was injured a change was made in the mode of moving the cars over this tramway. For a long time the cars were drawn by horses, but now and at the time of the injury complained of the motive power was derived from a stationary steam engine placed outside the mine, to which
We have not been able to find in the testimony of the plaintiff, nor in that of the defendant, evidence of any prominent and decisive act on the part of the former which should convict him of negligence under all the “ attending and surrounding circumstances ” of the case. Admitting the danger to which the plaintiff was exposed by the act of the defendant, it is urged that the plaintiff should have known it and protected himself from it; .or that he undertook the work with his eyes open and with a knowledge of the necessary dangers connected with the employment he assumed the risk, and must himself suffer the consequences. But it appears to us that the danger to which the accident is ascribed was not one of those ordinary dangers which the employees should be required to look out for and avoid, but rather one of those dangers which they may reasonably expect that proper precaution had been adopted by the employer to remove. It is not reasonable to suppose that the employees of the defendant would be subjected to such a danger in the performance of the ordinary work of taking the coal from the mine, nor was it unreasonable for the plaintiff to assume, that the dangerous places in the tunnel had been made safe. Abbotts’ case, 75 Md. 160; Stricker’s case, 51 Md. 69; Moran’s case, 44 Md. 292. All danger was removed immediately after the accident, and there is nothing to show that the same could not have been accomplished before the damage was done, if the defendant had acted with prudence and caution. We do not think it at all clear that the plaintiff could have been expected to know of the danger. On the contrary, there were many others, who had equal opportunities, who did not know of it. Having seen men engaged
We see ho objection to the prayers of the plaintiff. They appear to' put the whole case fairly and fully to the jury.
Judgment reversed and new trial awarded.