87 Md. 261 | Md. | 1898
delivered the opinion of the Court.
This case is not unlike most suits for personal injuries, based on the alleged negligence of the defendants,, in one respect at least—that there is a great conflict between the witnesses as to the particulars of the accident. It is not remarkable that persons present at an accident which results so seriously as that in this case, should differ in their narrative of the details, but it is difficult to understand how they can vary as much as they do in this case. Seven apparently disinterested witnesses testified that the plaintiff was running along the side of the car that ran over him, and that he was attempting, to ride on it by holding on to a ledge that projected from the side of the car and resting his feet on the truck or some part of the running gear. Yet the plaintiff denied that and swore he was standing in the centre of the track with some other boys with his back towards the east, the direction the car was coming from ; that he “ saw the boys make a break towards the north that he did not know what they were doing, but he tried to follow them, as he supposed he was in some danger, but stumbled and fell. One witness sustained him in most of his evidence and another in some particulars. At the conclusion of the plaintiff’s evidence the defendant offered a prayer that there was no legally sufficient evidence of negligence on the part of the defendant to entitle the plaintiff to recover and also another that the plaintiff’s negligence, as appeared from his testimony, had directly contributed to cause the injury and the verdict must be for the defendant.
In passing on those prayers we are of course required to accept as true the evidence offered by the plaintiff, however much we might differ with the jury as to what would have been a proper verdict. If the weight of testimony in favor of the losing side be so decided as to satisfy the trial Court that the jury acted from passion, prejudice or some motive other than a desire to do full justice to the parties, then it is the duty of that Court, on proper application, to grant a new trial, and this Court cannot review its action, but when
At the time of the accident the plaintiff was eleven years of age. He was returning home from school, which was held on the corner of Bank and Broadway streets, in the city of Baltimore. The defendant had two railway tracks on Bank street, on which the cars were propelled by electricity—the overhead trolley system having been adopted on that line a few weeks before the accident. There was a valve in connection with the city water-works in the middle of the east-bound track, near the centre of Spring street as it crosses Bank street, and an employee of the city was engaged in putting in an iron plate, to use his language, “ to represent a water stop.” A number of boys going from school were attracted by this work and were standing near the workman in or about the railway tracks. The plaintiff testified that he was going along the north side of Bank street, on the pavement, until he got near Spring street, when he saw some boys standing in the street on the north track; that he went out into the street and then thus described what occurred : “ And they walked up a little ways and 1 caught up to them; and my face -was towards the west; I saw them make a break towards the north ; and I don’t know what I did it for,, but I just run with them and because I saw them running; and I fell on my hands and feet, and the car struck me and I saw it was going to cut me across my thighs so I scrambled out in some way and it caught my left leg below the knee.” He said he had been standing there three or four minutes in the centre of the track with his back towards the way the car was coming; that he heard no bell or gong from the
The danger to those lawfully using the streets of cities and towns by reason of the introduction of “ rapid transit” on the street railways is apparent to the casual observer, and is forcibly brought to the attention of Courts by the numerous cases that have been before them since the streets have been thus used. As street railway companies have no exclusive right to the use of so much of the bed of the street as their tracks occupy, this Court has more than once had occasion to point out the distinction between the rights and duties of persons injured by accidents on street railways and those persons injured whilst trespassing on the rights of way of railroad companies owning their own tracks, and the duties of the companies cannot be more distinctly announced than was done in Cooke v. Baltimore Traction Co., 80 Md. 551. Assuming that the car that caused the injury to the plaintiff approached the crossing at Spring street at a very fast
If the plaintiff did stand with his back towards the direction from which the car approached on that track for three or four minutes as he says he did, he was clearly guilty of negligence. He was eleven years of age, was at that time in the fourth grade of the grammar school he attended, lived near Bank street and went to school on it. Without some evidence that he was deficient in his mental faculties, and there was none, a boy of his age and opportunities must be presumed to know that it was negligence on his part to thus place himself on the railroad track. But, as we intimated above, that would not justify the motorman in running over him. Although the plaintiff may be guilty of negligence, the defendant cannot thereby excuse itself if by the exercise
The tenth and eleventh prayers of the defendant were practically the same as those above referred to and it will not be necessary for us to discuss them, as what we have already said disposes of them. It is true the evidence of the defendant flatly contradicted that of the plaintiff, but that does not relieve us of the necessity of assuming the plaintiff’s evidence to be true in passing on such prayers.
The only other prayer offered by the defendant which
We do not see any reversible error in the ruling on the plaintiff’s first and second prayers. They are very general and of the character that are sometimes misleading, but when taken in connection with the defendant’s prayers that were granted the jury ought not to have been misled by them. It is true that there was no special evidence offered as to the intelligence of the plaintiff, but he was a witness
The first exception was to the refusal of the Court to strike out the evidence of one of the witnesses that there was no fender on the car. The defendant’s seventh prayer, which was granted, instructed the jury that they were not at liberty to find from the evidence that the accident in question was caused by any failure of duty on the part of the defendant in respect to providing a fender .or guard. On cross-examination of Miss Oberman the defendant had endeavored to cast doubt on her account of the accident by asking her if there was not a fender that obstructed her view. The Court was therefore right in refusing to strike out all evidence on that subject, especially as it instructed the jury as to the effect of it.
We can see no valid reason why the question asked the witness Sody embraced in the third bill of exceptions should not have been allowed. He had testified that he saw the plaintiff running along the side of the car, with his hand on a bar on the side, and a book in his right hand; that he fell and went under the wheel. He was then asked whether the plaintiff was “ in a position where the motorman could see him ? ” The object of that testimony is apparent—that the defendant hoped to show that the motorman could not see him in that position and hence that no negligence could be attributed to him for not stopping the car or taking some steps to prevent his falling. It was a pertinent question as to whether he was near the front, the centre or rear of the car, and if the witness could tell whether the motorman could see him in the position he was it was proper for the jury to know that fact. There was therefore error in not allowing that question to be answered. •
For error in rejecting the defendant’s eighth prayer and refusing to admit the testimony proffered, as stated in the third and sixth bills of exception, the judgment must be reversed.
Judgment reversed with costs and new trial avoarded.