United Railways & Electric Co. v. Rosik

| Md. | Jan 7, 1908

The plaintiff recovered a judgment in the Baltimore City Court, for personal injuries sustained, while a passenger, on one of the defendant's cars, in Baltimore City.

At the trial of the case, the defendant reserved three exceptions. Two of these relate to the rulings of the Court upon the admissibility of evidence, and were waived by the appellant in its brief and in the argument in this Court. The third exception presents the ruling of the Court upon the prayers and is the one question for discussion upon this appeal.

The plaintiff offered three prayers, all of which were granted. The defendant's first, second and sixth were refused, but its third, fourth and fifth prayers were granted as offered. The defendant's first prayer was granted with certain modifications.

The action of the Court in granting the plaintiff's prayers and in rejecting the defendant's prayers, as stated, forms the basis of the third exception and becomes the only matter before us for consideration.

The plaintiff, was a passenger on one of the defendant's cars on August 22d 1905, and was injured while attempting to leave or alight from the car near Lakewood avenue in Baltimore City. He testified that he boarded the defendant's car at Wolfe and Aliceanna streets, paid his fare, and became a passenger therein, that when the car reached Cannon street, he notified the conductor to stop at Luzerne street, the car slacked up but did not stop; he asked the conductor why he did not stop the car, the conductor replied, never mind, he then asked him to stop at Lakewood avenue, and the car crossed the steam railroad tracks at Lakewood avenue and stopped. He then got up, caught hold of the bench with his hand, and caught hold of the handle, put one foot down upon the board, and as he was about to pull the other leg after, the conductor pulled the bell twice, he was thrown off and the car went on. That he was hurt on the knee, leg and thigh, in the chest and shoulders, and is still unable to lift anything with the left hand, that he was taken home and sent for a doctor. He was unable to get out of his bed for over two months and suffered great pain from the injury.

The testimony of the plaintiff, as to the cause of the accident was substantially corroborated, by the witness Boloviski who was on the car at the time and saw the accident.

Evidence was offered by the defendant tending to prove that the accident was caused by the carelessness of the plaintiff in attempting to leave the car while in motion, in the middle of a block, at Binney street near Lakewood avenue; that he walked down to the foot board, held on the handle and jumped off the car, while in rapid motion; that he was warned not to do so.

The rule of law bearing upon negligence cases, similar to the one now before us, has been so firmly fixed by the decisions of this Court, that it becomes a mere matter of the application of the facts of the case, than to a discussion of the reasons upon which the rule rests.

The question of negligence both on the part of the plaintiff and defendant, was fairly and correctly presented to the jury, in this case by the plaintiff's and defendant's granted prayers upon the facts set out in the record. The plaintiff's first prayer was properly granted. It submitted the correct rule, as to the degree of care and skill the defendant was bound to exercise for the plaintiff's safety, as a passenger, on its cars. It has been approved by a number of cases, in this Court. United RailwaysCo. v. Beidelman, 95 Md. 483.

The plaintiff's second and third prayers were also properly granted, and we do not understand their correctness to be seriously controverted here.

The second prayer is as follows: The plaintiff prays the Court to instruct the jury that if the jury find from the evidence before them that Michael Rosik, the plaintiff, was a passenger upon one of the defendant's cars, and if they further find that said car came to a full stop to allow passengers to alight, and if they further find that after said car came to a full stop, the said plaintiff, while using due care and caution on his part in the premises, attempting to alight from said car, and if they further find that said car was started by an agent or servant of said defendant while said plaintiff was in the act of alighting from said car, and that by reason thereof the plaintiff was thrown to the ground and sustained the injuries testified to, then the verdict must be for the plaintiff.

The third prayer, relates to the measure of damages and is free from objection.

The defendant's first prayer was rejected as offered. It was, however, granted by a modification to the effect: "Provided the jury find that under all the circumstances there was want of ordinary care on the part of the plaintiff." There was no such error in the granting of this prayer, as modified, of which the defendant can complain. The prayer as offered, was as follows: "The jury are instructed, that if they find from the testimony that the plaintiff at the time of the accident mentioned, stepped to the foot board of the car while the same was in motion and before it reached the stopping place, and while on said foot board was thrown into the street by the motion of the car, then their verdict must be for the defendant.

A prayer similar to the one here offered by the defendant, has been condemned, by a number of cases in this Court. In the recent case of United Ry's. Co. v. Weir, 102 Md. 290, this Court, in approving the previous decisions on the subject, said: "Whether it be negligence per se for one to attempt to alight from a moving car must depend upon the circumstances of the particular case."

In United Ry's. Co. v. Woodbridge, 97 Md. 636, it is also said that the weight of authority is against the proposition that it is always, as matter of law, negligence and want of ordinary care for a person to attempt to get off from a car when it is in motion. Kane v. B. O.R.R. Co., 69 Md. 27; N.Y., Phil. N.R.R. Co. v. Coulbourn, 69 Md. 360" court="Md." date_filed="1888-11-22" href="https://app.midpage.ai/document/new-york-philadelphia--norfolk-railroad-v-coulbourn-7897679?utm_source=webapp" opinion_id="7897679">69 Md. 360; Western Md. R.R. Co. v.Herold, 74 Md. 510" court="Md." date_filed="1891-06-17" href="https://app.midpage.ai/document/western-maryland-railroad-v-herold-7898448?utm_source=webapp" opinion_id="7898448">74 Md. 510; Cumberland Valley R.R. Co. v. Maugans,61 Md. 53" court="Md." date_filed="1883-12-19" href="https://app.midpage.ai/document/cumberland-valley-railroad-v-maugans-7896414?utm_source=webapp" opinion_id="7896414">61 Md. 53; United Ry. Co. v. Hertel, 97 Md. 383.

The second and sixth prayers of the defendant were properly refused because they submitted the same proposition in substantially the same language, as the rejected first prayer, which we have held was clearly objectionable, for the reasons herein stated.

The theory of the defendant's case we think, was correctly submitted in its three granted prayers, and in the first amended prayer.

The law of the case, was fairly put to the jury by the granted prayers on behalf of the plaintiff and defendant and we find no reversible error in the rulings of the Court thereon. The facts of the cases of Baltimore Consolidated Ry. Co. v. Foreman,94 Md. 225; State, use of Miller, v. The Western Md. R.R. Co.,105 Md. 30" court="Md." date_filed="1907-02-13" href="https://app.midpage.ai/document/state-ex-rel-miller-v-western-maryland-r-3490132?utm_source=webapp" opinion_id="3490132">105 Md. 30, and other cases relied upon by the defendant, and cited in its brief, were unlike those of this case. They are dissimilar and do not fit the facts of this case. The question of negligence and contributory negligence was one of fact for the jury, to determine under all the evidence, and finding no error in the rulings of the Court, the judgment will be affirmed.

Judgment affirmed, with costs.