153 Md. 119 | Md. | 1927
delivered the opinion of the Oourt.
This is the second time this case has been before us. The first appeal was at the instance of the appellee, and is reported in 149 lid. 443, and was on an exception to the granting by the trial court of the appellant’s (then appellee’s) first, third, sixth, and ninth prayers. The ruling on the sixth prayer was reversed and it has been excluded from the present record. The rulings on the other three prayers were sustained by this Court, and they appear in the present record as the only prayers granted by the trial court, and are respectively designated as the defendant’s first, third, and sixth prayers. The other prayers in the former record were all rejected by the trial court and are the subject of the second exception in the present appeal. The prayers of the appellant are designated A, B, 0, D, E, F and Gr, and first to sixth inclusive, of which the first, third, and sixth were granted and the others rejected. We find no substantial or material difference in the evidence at the former trial and in the present case1, and for this reason see no need to review all the facts here, and shall confine ourselves to such evidence as we deem necessary to explain our views of the prayers before us.
In the first appeal, although the prayer to take the case from the jury had been rejected and the appeal taken on the
The 0 prayer of the appellant asked the court to declare as a matter of law that the four and one-half years old Paul Eolish “was guilty of negligence directly1 contributing to the happening of the accident.” The appellant said: “The approval of this court of the denial of that prayer would be contrary to its ruling in Sullivan v. Smith, 123 Md. 546.” We do not understand that we are overruling or qualifying the decision in that case. There the plaintiff, a girl of seven years, came from behind a wagon and was struck by an automobile. The driver saw her, instantly swerved his car to the left, doing everything he could to avoid striking her. In this case the motorman was going east on a street 66 feet in width, with side-walks of 13.5 feet, leaving 39 feet from curb-to curb, on which was a double track railway, the outer rails of each track being 12.15 feet from the curb, the tracks 10 feet from center to center. There was evidence on the part of the appellee that the car was running from 12 to 18 miles an hour, the appellant’s evidence being that it was running 8 miles an hour. The motorman testified that he did not see the boy who was struck by his car until after a colored boy yelled at him and he stopped the car and found the child under the left front truck. He stated that he stopped the car within eight or
The E and Gr prayers of the appellant respectively asked the court to declare as a matter of law that the father and mother of the boy who was killed were guilty of such negligence in allowing their boy to be on the street unattended as would disentitle them to recover. Our attention has only been directed to one case in this state, wherein this Court has declared as a matter of law that the plaintiff: was not entitled to recover when injured while in the custody of the parent, viz. Cumberland v. Lottig, 95 Md. 42. That case is not this. In the Lottig case Judge Fowler drew the distinction between it and a case in principle like the one before us, and that is whether, at the time of the accident the injured party was in a place where he had a lawful right to be, or where it was proper for him to go. The Lottig boy was injured by taking hold of an electric wire crossing over, and eighteen inches above, a roof to which he had been taken by his mother at night for the purpose of looking into and through the windows of a theatre across the street. “Can it be said that the plaintiff: and hi.s mother, as was said of Kelson in Western Union Tel. Co. v. Nelson, 82 Md. 293, were upon a public highway, or in a place where the defendant supposed they would ever go, or that
Eliminating, then, the child from the charge of contributory negligence, what degree of care is required of the parents? It is undisputed that at the time of the accident the father, who is the equitable plaintiff, was at his work and that the children were in the care of the mother. They lived in a densely populated section of South Baltimore, in a block where the average house was fifteen feet in width; houses solidly built; in some instances a family to each floor. The street was the play ground. A few minutes before the accident the mother and the boy were on the steps, which projected on the sidewalk. Her two months old baby began to cry. She weni^into the house to- look after the baby and was gone five or six minutes. When she came out, after that short time, her boy had been killed. When she left her boy on the steps to- gq to her baby, had she thereby so contributed to the death of the boy as to- preclude a recovery ? “Courts are cautious not/to invade the province of the jury, and, although the question of negligence may become a matter of law, the circumstances of the case must be clear -and decisive to justify a withdrawal of the- case from the consideration of the jury.” United Rys: Co. v. Carneal, 110 Md. 230; Balto. & O. R. Co. v. Belinski, 106 Md. 455. A case almost identical in its facts with the instant case was that of Del Rossi v. Cooney, 208 Pa. 233, where the court, quoting with approval from Shearman & Redfield on Negligence (5th Ed.), par.
The appellant’s second prayer asked the court to instruct the jury that there was no evidence “legally sufficient to show that the motorman saw, or could by the use of ordinary care have seen, the peril of the boy in time to have avoided the accident mentioned in the declaration.” This prayer contains the same proposition as the appellant’s D and E prayers, except that the latter ask for a directed verdict, and the second prayer, if granted, would have had the same effect. They are variance prayers based on the contention of the appellant that this Court in the former appeal held that the doctrine of last clear chance did not apply, and that the appellee had declared “on the doctrine of last clear chance.” The declaration states that “while the said Paul Efolish * * * was rightfully and carefully walking upon and across said Portland Street, at or near its intersection with Emory Street aforesaid, and who, by the exercise of ordinary care on the pari of the agents, servants and employees of the defendant corporation, was or could have been seen by them crossing the said intersection of said public highways in time to have avoided striking the said Paul Kolish, a car of the defendant corporation, then and there being operated by its said agents, servants, and employees, struck, knocked down, and. ran over the said Paul Kolish.” There is no admission here that the boy or his parents were guilty of contributory negligence, which is present before the plaintiff can claim a recovery on the ground that he was not given his last clear
The first exception also- covers the- rulings on the fourth and fifth prayers of the appellant, which were refused. The fourth prayer standing alone would not be objectionable. In effect it was a request for an instruction that if the jury found the boy was of such tender age as not to- possess sufficient discretion to avoid danger, that his mother was on the sidewalk at or about the- time of the accident, that the child ran into the highway and came in contact with the car, and that if the mother failed to use ordinary care under all the circumstances, and if her failure to exercise reasonable care in not preventing the child from so running into the highway directly contributed to the accident, then the verdict of the jury should be for the defendant. The fifth prayer asked the
Inasmuch as it is our opinion that there was sufficient evidence of negligence on the part of the appellant’s employee to take this ease to the jury, and because we think the questions of the contributory negligence of the deceased child and of his father and mother were fairly presented by the granted prayers of the appellant, we find no error in the rulings of the trial court on any of the prayers.
The only other exception taken by the appellant was to the ruling of the trial court on a question put to Ellsworth Marshal], a hoy who lived at the corner of Emory and Portland Streets, three or four doors from Kolish, and who- was playing on the sidewalk at the time of the accident. To the question, “Was this car when you saw it — the one that hit
Judgment affirmed, with costs.