71 A. 970 | Md. | 1909
V. Russell Riley, appellee and plaintiff below, who lived at 648 Columbia Avenue, in Baltimore City, when returning from a visit to some friends in Pikesville, late at night on December 15, 1905, got off one of the cars of the appellant at the corner of North and Linden Avenues, to take a John Street car going to Columbia Avenue. It was cold, and he went into a drug store and got some cigars and walked up North Avenue smoking while waiting for his car, but not seeing one and seeing a Madison Avenue car standing near Wegner's restaurant or saloon, several doors below the corner, he hurried and got on it, and while he was on the rear platform of the car it was struck from the rear by what is called in the evidence a "runaway car," with no one in charge of it and when running rapidly on the same track in the same direction as the car he was on, and he sustained injuries which necessitated the amputation of one of his legs a few inches below the knee, and this suit was brought to recover for such injuries,
The grounds of the defense were that he was guilty of contributory negligence in standing on the platform of the car and that he assumed the risks to which his position exposed him.
The trial resulted in a verdict and judgment in favor of the plaintiff for $10,000.00, from which judgment this appeal was taken.
The record contains three exceptions to the rulings of the Court on the evidence, and one exception to the granting of the plaintiff's two prayers, the rejection of defendant's first, second, third, fifth, sixth, seventh, ninth, tenth and eleventh prayers, and the overruling of defendant's special exceptions to plaintiff's prayers. The only exceptions however *330 relied on and pressed in this Court are the exceptions to the ruling of the Court on the evidence, and to the granting of plaintiff's first, and the rejection of defendant's sixth, ninth, tenth and eleventh prayers.
Plaintiff testified that: "He ran to get on the car and got on, but before he could throw his cigar away or get inside, some one jumped on the rear end of the car, and holloaed and pulled the bell and before he knew it there was an awful crash. The car was still when he got on. His position was on the back platform of the car facing the motorman, looking inside the car, about to walk in. He did not have time to throw his cigar away or get inside the car before someone jumped on and holloaed and at the same time rang the bell and before he knew it there was a crash." And on cross-examination he said he ran back of the car and got on because it was the last car that night going down, and that he still had the cigar with him; that he didn't have time to take any position, and had just gotten on the car, was standing facing — "I was looking inside the car;" that he was standing on the platform looking inside the car; that he guessed he was smoking; that he could not tell how many people were in the car; that he saw the conductor, who was standing up in the front part of the car; that no one else was there that he knew of; that the conductor was not on the back platform or at the back door; that he did not have time to see how many people were in the car, which was not crowded, and that "he guessed there was plenty of room inside." That he had been around cars a good deal in Baltimore for ten years, but never knew of any notice or sign in the cars warning people against standing on the platform because it was dangerous, and that "those so doing assumed the risk," but that he had seen signs prohibiting smoking inside the car, and that he knew how to read. That he didn't know whether it was Rosenheim who holloaed, but that somebody holloaed, and at the same time jumped on and pulled the bell; that "everything was all confusion at the time," and that he, plaintiff, was "about opposite the door then, about going inside *331 the car," and that he knew nothing about the runaway car until it struck the car he was in.
Plaintiff's witness, Herford, says that the car plaintiff was on was standing on Madison Avenue, in front of Wegner's Saloon, the fourth door from the northeast corner of Madison and North Avenues, and that he saw someone get on the car ahead of the plaintiff who went inside the car, and was about to take his seat when the accident happened; that the conductor was in the front part of the car, and had something in his hand, and witnesss thought he was writing; that he saw the runaway car pass the northwest corner, and saw plaintiff on the platform of the car that was struck; that he saw a man who came out of Wegner's saloon, get on after plaintiff, and that after witness holloaed he jumped off. That plaintiff could have gotten inside the car and taken a seat; that Rosenheim got on the car a few minutes after plaintiff; that plaintiff was standing on the left hand side of the platform of the car facing the motorman; that witness holloaed loud, and Rosenheim, the man who got on the car after the plaintiff, jumped off but he could not say positively how long Rosenheim was on the car before he jumped off; that he imagines that it was not more than a couple of minutes "if it was that much," it was a very short time.
Plaintiff's witness, Zimmerman, stated that he came out of Wegner's saloon and saw a car coming down Madison Avenue which stopped, and that he stepped on the car and at the same time plaintiff got on the car. That he, witness, went inside the car, and as he was about to take a seat on the right side he looked around and saw plaintiff standing on the left hand side of the rear platform, holding on to the rail; that the conductor was in the front part of the car writing something in a little book, but that there was no one else in the car, and that about half a minute later he heard some one jump up on the car and ring the bell, and he saw him jump off again, and that then the crash came, and witness found himself in the front part of the car where the conductor was; that the car that he was on was at a standstill when he got on *332 it, and after it was struck it went to about the middle of the square; that there was plenty of room inside the car, and that it was probably half a minute after the plaintiff got on the car before Rosenheim got on the car and pulled the bell, and that in the meantime plaintiff was standing on the platform holding to the rails, but that he "didn't know whether he was smoking or not."
Plaintiff's witness, Brenner, stated that he and Rosenheim came out of Wegner's saloon; that Rosenheim was waiting to go downtown, and he was going east on North Avenue; that they saw the car coming, and Rosenheim left him on the south side of the street, and he presumed he got on the car, and witness had gotten "diagonally across" Madison Avenue when he heard a shout, and looking back saw plaintiff standing on the platform and Rosenheim pulling bell rope, and before he could realize what happened, he saw another Madison Avenue car coming and there was a crash which carried both cars as far as the middle of the block; that the crash come immediately after pulling of the bell and the car was either still or had very little headway. That after the accident the platforms of the two cars were apparently smashed, and there was a tangle of the iron grating and the brake, "and plaintiff was down amongst them."
The plaintiff produced other witnesses whose testimony was to about the same effect as the evidence above stated, from which the jury could have found that at the time of the accident the car on which plaintiff was injured was either standing still or had just started, and that plaintiff was standing on the rear platform of the car; that there were very few people in the car; that the plaintiff had an opportunity to go inside the car, and that if he had done so, instead of remaining on the rear platform, he would not have received the injuries for which he now seeks to recover.
Defendant proved by its witness, Glenn, that he was conductor on one of the defendant's cars and saw the accident in which the plaintiff was injured; that he had been at work on the street cars for fourteen or fifteen years previous to the *333 accident; that he took the car plaintiff was on from the place of the accident back to the barn; that that car and all other cars of the defendant had posted on them a sign forbidding people to ride on the steps or rear platform of the car, and stating that those who did so did it at their own risk; that these notices had on them, in big red letters at the top, the word "Warning."
Plaintiff's first prayer is as follows: "If the jury believed that the plaintiff was a passenger on one of the defendant's cars, and whilst being carried therein was injured by a collision between that and another of defendant's cars while moving on the same track, then the presumption is that the injury resulted from the negligence of the defendant, and the plaintiff is entitled to recover, unless the defendant shows that said injury did not result from its negligence or that the accident could have been avoided by the exercise of ordinary care on the part of the plaintiff."
By this instruction the jury were told that if they found the facts stated in the prayer, the plaintiff was entitled to recover unless the defendant showed either that the injury did not result from its negligence, or that the accident could have been avoided by the exercise of ordinary care on the part of the plaintiff. In other words, that the jury, in determining whether the injury resulted from the negligence of the defendant, or the accident could have been avoided by the exercise of ordinary care by the plaintiff, were confined to the evidence produced by thedefendant.
As was said in the case of Lewis v. B. O.R.R. Co.,
While an injury may be sustained under such circumstances as, when shown, give rise to the presumption of negligence on the part of the defendant, the testimony adduced to show these circumstances, may also disclose such evidence as will justify the Court in saying, or the jury in finding, that the plaintiff was guilty of such contributory negligence as defeats his right of recovery.
Without meaning to say as a matter of law that the testimony produced by the plaintiff shows that he was guilty of contributory negligence, it does contain evidence from which the jury could have found that the plaintiff had the opportunity to go inside the car, and that, instead of doing so, he remained on the platform, and that under the circumstances disclosed by this evidence he was negligent, and that but for such negligence on his part he would not have been injured.
Notwithstanding the jury may have so found, yet under the instructions contained in the plaintiff's first prayer, they were required to find for the plaintiff, unless the defendant showed that the injury did not result from its negligence, or that it could have been avoided by the exercise of ordinary care on the part of the plaintiff.
In the case of Phil., B. W.R. Co. v. Hand,
Appellee's counsel cites and relies upon the case of N. Balto.Pass. Ry. Co. v. Kaskell,
The defendant asked the Court, by its ninth prayer, to instruct the jury that "where there is ample room inside the car, a passenger who, for his own convenience, stands upon the platform, assumes all the risk of being upon the platform," and that if they found that the plaintiff had a reasonable opportunity to go in the car, but failed to do so, and that he was injured in consequence thereof, their verdict should be for the defendant; and by their tenth prayer, that if they found that he "got upon the car, passed the doorway and took a position upon the platform," * * * "then he assumed the risks incident to such position;" and if they further found that he was injured by reason of his being in such position, their verdict should be for the defendant; and by their eleventh prayer, that the platform of the car is a more dangerous place than the inside of the car, and if they found that the plaintiff was standing on the platform of the car after he had a reasonable opportunity to go inside, and that he was injured because of his position, their verdict should be for the defendant. In other words, these prayers asked the Court to say as a matter of law, that if the plaintiff was on the platform of the car after having had an opportunity to go inside the car, and was injured in consequence of his being there, he was guilty of contributory negligence, and cannot recover.
In the case of Yorkt'n T.R. v. Cason,
In the case of State, use of Miller, v. Western Md. R. Co.,
In both of these cases the Court held that the conduct of the party injured, as to which the proof was clear, and as to the nature of which there was no room for ordinary minds to differ, amounted in law to contributory negligence. And there are numerous cases elsewhere which hold that a party who rides on the platform of a train or a rapidly moving street car, in the absence of some good excuse for so doing, is guilty of negligence, and among them is the case of Thane v. ScrantonTraction Co., 191 Pa. St. 249; 43 Atl. Rep. 136, referred to by the appellant, where the Supreme Court of Pennsylvania recognized that the previous decisions of that Court had established the rule that standing on the platform of a moving railroad train was negligence per se, but that standing on the platform of an ordinary horse car was not negligence per se, but raised a question for the jury, and held that: "The increased speed upon electric passenger railway lines, with its resultant danger, now approximates to that of steam railroads," and that where a passenger, without *338 any special reason for doing so, remains on the platform of a moving trolley car, he is guilty of negligence per se.
The general rule as stated by Hutchinson on Carriers, Vol. 3, Sec. 1174 (3rd Ed.), is that: "Where the question whether the negligence of the passenger did, in fact, proximately and naturally contribute to the injury, depends for its determination upon conflicting testimony, it must be submitted to the jury as a question of fact. And although the facts have been ascertained, if they are such that fair-minded men might honestly come to different conclusions as to the injury sustained by the passenger having been contributed to by his own carelessness or imprudence, the question of his contributory negligence must be determined as one of fact by the jury." And from the decisions of this Court it may be said that, "Unless there is some prominent and decisive act, in regard to which there is no room for ordinary minds to differ," and unless the conduct of the plaintiff relied on as amounting in law to contributory negligence, is established by clear and uncontradicted evidence, the case should not be withdrawn from the jury; and that, "when the nature of the act relied on to show contributory negligence can only be determined by all the circumstances attending the transaction, it is within the province of the jury to characterize it." McMahon Case,
The doctrine of assumed risks or waiver of right of action, which has most frequent application to the relation of master and servant, while theoretically distinct, in its practical application to ordinary negligence cases between passengers and carriers, not affected by any contractual relation other than the implied contractual obligations between them, necessarily, it would seem, involves the doctrine of contributory negligence. For unless the position voluntarily taken by a passenger exposes him to dangers that are obvious and patent, or such as he knew of, or by the exercise of ordinary care ought *340 to have anticipated, he cannot in justice, in case of resultant injury, be held guilty of contributory negligence, or to have assumed the risk of an injury he had no reason to anticipate, or to have waived his right of action therefor. On the other hand, if the danger to which he voluntarily exposed himself, was obvious and patent, or such as he knew of, or by the exercise of ordinary care ought to have anticipated and injury follows in consequence thereof, then he was guilty of contributory negligence, and must be held to have assumed the risk of his position. And that is what the learned Judge meant in Strauss'sCase, which is in entire accord with the views expressed inCason's Case and in Miller's Case.
By the defendant's sixth prayer the Court was asked to instruct the jury, that if the plaintiff took an exposed and dangerous position on the car, and he was injured by reason of his taking such position, he could not recover. This prayer entirely ignores plaintiff's own testimony that he got on the platform and took such position as he was about to enter the car, and before he could get inside the accident happened, and was therefore properly refused.
We find no errors in the rulings of the Court on the other prayers, or defendant's special exceptions to plaintiff's prayers, the exceptions to which were not pressed in this Court. The evidence excepted to in the first and second exceptions, was the testimony of the plaintiff that before the accident he had an arrangement to go into business, had intended to go into business. This evidence was doubtless offered for the purpose of enhancing the damages, by showing that before the accident he had good business prospects, which he lost in consequence thereof, and was clearly inadmissible. In the recent case of WinslowElevator and Mach. Co. v. Hoffman,
The evidence that the plaintiff had married after the accident, excepted to in the third exception, is evidence of the same character as the evidence held to be inadmissible in Stockton
v. Frey, 4 Gill, page 420, and Pensylvania Co. v. Roy,
Judgment reversed with costs, and case remanded for a newtrial.