85 Md. 72 | Md. | 1897
delivered the opinion of the Court.
The appellee brought suit in the Superior Court of Baltimore to recover for personal injuries sustained by him, caused by a fall through an elevator shaft in a building owned by the appellant. The judgment was for the plaintiff and the defendant has. appealed. The main questions in the case arise upon the prayers and relate to the negligence of the defendant and to the contributory negligence of the plaintiff.
The plaintiff’s prayers as granted by the Court are conceded to be free from any valid objection, and the exception to the modification of the defendant’s second and fourth prayers was abandoned at the hearing in this Court. So the questions to be passed upon are contained in the rulings of the Court upon the rejection of the defendant’s first and fifth prayers and its modification of the sixth.
According to his own testimony he was in a hurry, and
The principle of law governing these cases is thus stated by this Court in Lewis v. B. & O. R. R. Co., 38 Md. 599 : “ Without reviewing the many cases in which the subject of negligence has been considered, the question in this and in all cases of like kind is whether the injury complained of was caused entirely by the negligence or improper conduct of the defendant or whether the plaintiff so far contributed to the same by his own negligence or want of ordinary care and prudence, that but for such negligence or want of care and prudence the injuiy would not have happened. In the first case the plaintiff would be entitled to recover, in the latter he would not, unless the defendant by the exercise of care and prudence, might have avoided the consequences of the plaintiff’s negligence.” But, even if it be assumed, as stated by the appellant in his brief, that the act of the appellant in moving the elevator without notice was negligence, and that this negligence contributed to the accident by causing the appellee to rely upon the absence of such notice in failing to ascertain the absence of the elevator, yet, as this was an act of negligence, prior in point of time to the act of the appellee in failing to take proper
Now, while it is true, the question of negligence is ordinarily one of fact and not of law, yet says this Court in Cumberland Valley Railroad Company v. Maugans, 61 Md. 60, cases do occur in which it becomes the duty of the Court to interpose and withdraw them from the consideration of the jury. It must present some prominent and decisive act in regard to the effect and character of which no room is left for ordinary minds to differ. We are of opinion that in the present case there was contributory negligence or want of ordinary care on the part of the plaintiff, and that the defendant’s first prayer, withdrawing the case from the consideration of the jury, should have been granted.
We find nothing in the case of Morgolofski v. The People's Bank, 75 Md. 432, relied on by the appellee, in conflict with the views herein expressed.
Entertaining this view, we do not find it- necessary to pass upon the rulings of the Court upon the other prayers.
Judgment reversed, without awarding a new trial, with costs.