78 Md. 409 | Md. | 1894
delivered the opinion of the Court.
On the 26th May, 1891, Edward Ringgold, desiring to take one of the defendant's cars to go to his business, left his home, having in his right hand a beer bottle containing cold tea, and on his left arm a small basket, about eight inches long, containing his lunch. He stopped on the west side of Druid Hill avenue, at a point- twenty-five or thirty feet south from Dolphin street, and there he raised his arm for the purpose of signalling a car which was then coming down the avenue.
Gallagher, the gripman, states, that he saw him standing there looking at the cars, but “saw no signal or indication on the part of the deceased that he wanted to get on the car.” As the car came down the avenue, it slowed up as it approached Dolphin street, and as it crossed “it was going slow,” hut after it reached the south side of Dolphin street, its speed was suddenly increased. The gripman gives as the reason for this that when he approached Dolphin street, “there was a gentleman who got on the trailer, * * * and that after passing the south-corner, * * * and seeing no one there to get on, the witness started the train up gradually until five hells were rung, which was the signal to stop immediately.” When the car had passed about thirty feet from Dolphin street, and while it was still moving, the deceased, who had moved into the street, made an effort to get on. Before he could do so, the speed of the car was increased. He grabbed the car with his left hand, and, running by its side, tried to board it. The conductor seeing him in this position, seized him under the arm to prevent him from falling. The deceased then told him, “Let go my arm, I can get on,” and twice he
Ringgold was about forty-two years of age, a little over five feet two inches in height, and weighed above two hundred pounds. He was active, intelligent for a man o£ his color, temperate, and accustomed to use the cars daily.
The parties offered several prayers, all of which (except the seventh of the plaintiff’s, upon the measure of damages,) the Court refused, and granted in lieu thereof instructions of its own, intended to cover the whole case; and the rejection of the defendant’s prayers, the granting of the seventh prayer of the plaintiff', and the instructions given by the Court, constitute the defend
By the defendant’s first prayer, the Court was asked to instruct the jury, that the deceased was guilty of such carelessness as to amount in law to contributory negligence, if they found that being of the age and physical condition stated in the evidence, he received his injuries in consequence of his attempt to board the car, while it was moving at the rate of six or more miles per hour, with a bottle in his right hand and a basket on his left arm, and by reason of being so encumbered, was prevented from grasping with his hand the handle attached to the car. While it is well settled that where there- is a contrariety of evidence, and the question of care or negligence depends upon the consideration of a variety of circumstances, “the most a Court can do is to define the degree of care and caution exacted of the parties, and leave to the practical judgment and discretion of the jury the work of comparing the acts and conduct of the parties concerned with what would be the natural and ordinary course of prudent and discreet men under-similar circumstances;” Batlo. & Ohio Railroad Co. vs. Fitzpatrick, 35 Md., 44; yet cases do occur, in which there is clearly established such glaring acts of carelessness on the part of the plaintiff, as to amount in law to contributory negligence and in such it is the duty of the Court when requested, so to instruct the jury. McMahon vs. North. Cent. Railway Co., 39 Md., 449.
This prayer, however, does not take from the jury the finding of the facts upon which it is based. The Court
The proof shows that Ringgold was about forty-five years of age, and accustomed to use the cars daily. He was extremely stout in proportion to his height. His weight was about two hundred pounds, though his height was slightly over five feet two inches. His wife 'testifies, that he was very active; another witness, that he was “fairly active.” There was testimony tending to prove that the rate of speed when he attempted to board the car was six miles an hour or more. He was encumbered by having in his right hand a beer bottle, and on his left arm a basket about eight inches in length, and being so encumbered, there was evidence tending to show that he ran alongside the car endeavoring to leaj) or climb upon it. We are of the opinion that if under these circumstances the deceased chose to make the experiment of attempting to enter the car, he
It is also contended that the prayer was bad because it permitted the jury to find a verdict for the defendant, without requiring them also to find that the peril of the-deceased could not have been discovered by the driver, by the exercise of diligence in time to avoid the accident. But under the theory of this prayer we do not think this would have been proper. The hypothesisujDon which they could find for the defendant, was, that Ringgold had negligently attempted to enter the car. If they so found, such conduct would be the proximate-cause of the injury, unless there supervened some contributing negligence on the part of the railway. Proximate cause is the act which directly produces the injury. Baltimore and Ohio R. R. Co. vs. Trainor, 33 Md., 542.
And if that was due to the improper conduct of the deceased, or if such conduct so far contributed to it,, that- without it, the accident would not have occurred,, the plaintiff would not be entitled to recover, unless the-defendant could by care and prudence, have avoided the consequence of such negligence. Lewis vs. Balt. & Ohio R. R. Co., 38 Md., 588.
If, therefore, the jury found that the cause of the-accident is to be attributed in this case to the act of the deceased in having attempted to board the car, when it was obviously imprudent for him so to do, the fact that the agents of the defendant failed to stop the car, although such failure may have been a breach of duty on their part, cannot affect the question.
By the rules of the company, it was the duty of the gripman, to keep “a sharp look out for passengers, and
Even if the jury found that the signal to stop was or ought to have been seen by the gripman, and the deceased had a right to suppose, from the slowing of the car, that his tender of himself as a passenger had been accepted, it would not authorize him to make an attempt
In such a case he must -bear the consequences of his own act, provided the agents of the defendant as soon as the dangerous position was discovered by them, used all reasonable efforts to prevent an accident. State, use of Harvey vs. Balto. & Ohio R. R. Co., 69 Md., 347.
We will add here, to avoid misunderstanding, that we do not mean to decide that there are no cases in which the duty rests upon the defendant to exercise diligence in discovering a peril to which the plaintiff may be exposed by his own act. Central Railway Co. vs. Smith, 74 Md., 216, was such a case. There the car had stopped, the plaintiff was about entering, and it was the duty of the driver not to start until she was in a position of safety, and it was proper for the Court to instruct the jury to that effect.
It is contended, however, that the subject of this prayer is fully covered by the instructions granted by the Court. It is true that by the second paragraph of those instructions, the jury were told that if they found “any failure of the deceased to exercise ordinary care on his part, as by attempting to board a car in too rapid-motion, while the deceased was holding a bottle and a basket, running after the same for the purpose, etc. C But as was said by this Court in Balto. & Ohio R. R. Co. vs. Mali, 66 Md., 60, the defendant was entitled to a “definition of what would constitute contributory negligence;” or, as was said in Union Railroad Co., et al. vs. State, use of Steever, 72 Md., 159, “to have the mind of the jury directed to the specific facts in evidence and instructed as to the effect of such facts if found to
It was insisted at the argument by the appellee’s counsel, that at the time the conductor released his grasp on the deceased, the latter was a passenger, or in the position of a passenger, and in the keeping of the railroad. and that, though the defendant’s agent was told by the deceased, three times to let him go, and did so, in consequence of this demand, that the act of the conductor in then letting him ago, was evidence from which the jury could find there was negligence on the part of the defendant.
But the prayer requires the jury to find as a preliminary fact that the deceased was on the car and in the perilous position described in the evidence by his own imprudent act, and if he was, we do not think ho ought to be regarded as a passenger. There was no evidence that the gripman saw his signal, and if he did, the deceased could not infer his tender to become a passenger had been accepted by the slowing of the car; provided it was still moving so rapidly as to make it obviously unsafe to attempt to hoard it. The relation of carrier and passenger may indeed be implied from slight circumstances, but one who intends to take passage on a street car, cannot be regarded as a passenger, while he is in the act of entering it, unless he does so with a proper degree of care and prudence. The street was in no sense a passenger station for the safety of which the company is responsible. Booth’s Street Railway Law, 445; Creamer vs. West End St. Ry. Co., 31 N. East. Rep., 391; Platt vs. Forty-third St. & Grant St. Ferry R. R. Co., 2 Hun, 124.
In Smith vs. St. Paul City Ry. Co., 82 Minn., 1, the Court pronounced an instruction correct, which set out that when a person intends to take a street car, and has hailed it, and it has been stopped to enable him to enter, he is to be regarded as a passenger while he is in the act of carefully and prudently attempting to step on the platform. Booth’s Street Railway Law, 326.
If, therefore, the jury found as they were required by this prayer, that when the deceased was. discovered by the agents of the defendant, he was clinging to the car, and in a position of peril by his own imprudent act, the duty of the conductor towards him was not that of the utmost diligence, but only such reasonable care and caution as is due to a person not a passenger. Balto. & Ohio R. R. Co. vs. Breinig, 25 Md., 378.
If this be so, the duty of the conductor was to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation. State, use of Coughlan vs. Baltimore & Ohio R. R. Co., 24 Md., 84.
Ringgold was a sane man in full possession of his faculties, and accustomed to the use of cars. He believed he could recover himself, if released, and therefore thrice demanded to he let go. The conductor's duty to him was the same as that of the passenger to the railroad, in Balto. & Ohio Railroad Co. vs. Leapley, 65 Md., 577, viz., that of ordinary care, when the conductor directed the passenger to alight from the moving
In discussing these two prayers, we have so thoroughly gone over the whole case, that we do not deem it necessary to advert to the other rejected prayers of the defendant. To do so, would be either to repeat what has already been said, or to indulge in a criticism upon their form. We will add, however, that in our opinion the two first paragraphs of instructions by the Court are erroneous, and by their form likely to mislead. By the first the jury are instructed that if they find “any want of ordinary care on the part of the defendant’s conductors or gripmen, or either of them, such as by a failure to stop the train when signalled, or to notify the deceased not to attempt to board,” etc., then the verdict should be for the plaintiff. By this no question as to the contributory negligence of the deceased is to be passed upon by the jury. Possibly the learned Judge intended the first paragraph to be read in connection with the second, but the instructions as framed do not make this apparent, and for that reason are capable of easily misleading the jury. But even if this was not correct, and the two sections be taken together, we think they ignore the question as to the proximate cause of the accident. For instance, they instruct the jury that if they find want of care on the part of the defendant in any one of the several matters joined in the instruction by the disjunctive “or,” whether it bore any relation to the proximate cause of the accident or not, there must be a verdict for the plaintiff. We are of the opinion this was error. And beside this, the parties were entitled to “have the mind of the jury directed to the specific facts in evidence, and instructed as to the effect of such facts if found to exist.”
Judgment reversed, and new trial awarded.