78 Md. 589 | Md. | 1894
delivered the opinion of the Court.
The defendant company owns and operates a street railway in the City of Baltimore. At about half past seven o’clock in the evening of January 15th, 1892, the plaintiff, going northward on Howard street, sought to cross Centre street, and was run over and injured by one of .the defendant’s cars. The railway track of the defendant extends up Howard street to Centre street; then turns to the right, and continues in an easterly direction down Centre street. The plaintiff, coming up on the Bast side of Howard street, on the evening of the accident, was compelled to pass over the track of the defendant, at the point where it curves from Howard into Centre street, and while so crossing Centre street, the accident happened. It appears from the testimony on the part of the plaintiff, that he was familiar with the locality, and had been for nearly five years accustomed to cross the track of the defendant at the same point where the accident occurred, and that if he had seen or heard
Other testimony was given tending to prove that the driver whipped the horses in his car in such manner as to cause them to rear and become frightened, and gallop around the curve. The testimony offered by the defendant materially conflicts with that of the plaintiff.
The question which has been chiehy argued at the hearing in this Court is whether, on the facts stated, the plaintiff had not by his own negligence directly contributed to produce the injury complained of, and accordingly debarred himself all right of recovery; and whether in that state of case, the Court below had not committed error in refusing to grant the defendant’s first prayer, which would have taken the case from the jury. We have repeatedly held that in cases of this character, the Court is never at liberty to withdraw the case from the
The appellant’s main contention is that the Court below erred in refusing to grant its second prayer, which reads: “'The defendant prays the Court to instruct the jury that it appears from the uncontradicted evidence in the cause that the plaintiff by his own negligence, directly contributed to the happening of the injury complained of, and that their verdict must be for the defendant.”
From the statement of proof hereinbefore set out in this opinion, it is very clear that this prayer was properly rejected, as being both misleading and misdirecting to the jury. To have instructed the jury that it
In the case of Baltimore City Pass. Railway vs. McDonnell, 43 Md., 552, which is, in some respects, closely analogous to the case under consideration, the late Mr. Justice GrRASON, delivering the opinion of the Court, said: “ It was contended bjr the counsel of the defendant that, if the driver saw that the railroad track was clear, and no one upon it, he had performed all that ordinary care and prudence required of him, and it was not for him to suppose that any one would put himself in the way of the car by attempting to cross in front of it. In a large, populous city, where all descriptions of vehicles are constantly passing and repassing, as well as persons on foot, including the aged and infirm, as also children who are young and wanting in prudence and discretion, it is the duty of drivers of cars not only to-see that the railroad track is clear, but also to exercise a constant watchfulness for persons who may be approaching the track. Unless he does so, he does not exercise that ordinary care and prudence which the law imposes upon him. In this case there is proof tending to show that instead of exercising such watchfulness, his attention was occupied by a young lady standing in the door of a house on the opposite side of the street from that from which the plaintiff was approaching."
We think the Court committed no error in submitting the case to the consideration of the jury, and finding no
Judgment affirmed.