66 Md. 501 | Md. | 1887
delivered the opinion of the Court.
In this case, there is hut a single exception, and that was taken by the defendants to the granting by the Court of the plaintiff’s first prayer, and the rejection by the Court of the second, third, fourth, sixth and seventh prayers of the defendants. The defendants made special •exception to the plaintiff’s first and other prayers, upon the ground that there was no evidence legally sufficient to support them; but as to the first of those prayers the objection was overruled.
We have examined carefully the evidence set out in the record, and are of opinion that there was evidence legally sufficient to require the case to be submitted to the jury. We shall not, however, enter into any recital of the facts; but whether the accident was occasioned by the negligence of the defendants’ agents exclusively, if by their negligence at all, or by that of the equitable plaintiff alone, or by the negligence of the defendants’ agents and that of the equitable plaintiff operating concurrently, were questions proper for the jury to determine, under all the facts of the case.
But while the Court was correct in overruling the objection to the legal sufficiency of the evidence, we are of opinion that there was error committed in granting the first prayer offered on the part of the plaintiff. By that
It is argued, however, that the error of this instruction was rectified and rendered harmless, by the terms of the first prayer on the part of the defendants, which was granted. But we do not think so. By that prayer of the defendants, the jury were instructed as to the onus of proof of negligence to render the defendants liable, and that unless the accident producing the injury complained of was caused solely by the negligence of the defendants, the verdict should be for the defendants. But this instruction makes no specific reference whatever to any of the facts relied on to establish the existence of contributory negligence on the part of the equitable plaintiff. In
This Court, within the last few years, has had repeated occasions to pass upon the questions involved in this case; and, in those cases, the legal principles applicable here are fully stated. We therefore deem it unnecessary to repeat those principles in this case. The last case upon the subject, in which the principles of law applicable to this class of cases are fully stated, is that of Phil., W. & B. R. Co. vs. Hogeland, ante p., 149, in which some of the preceding but recent cases in this Court are referred to ; and we think the second, third, fourth and sixth prayers of the defendants are fully ^mbraced and supported by those decisions.
We must, therefore, reverse the judgment of the Court below, and remand the case for a new trial.
Judgment reversed, and new trial awarded.