Central Railway Co. v. Smith

Briscoe, J.,

delivered the opinion of the Court.

This action was brought by the appellee against the appellant, the Central Railway Company, to recover damages for personal injuries alleged to have been sustained by the plaintiff, while a passenger on the company’s road, on account of the negligence of the company’s employe. The defendant is a street railway company operated hv horse-power in the City of Baltimore, and its defence was contributory negligence on the part of the plaintiff. The case was tried before a jury, and resulted in a verdict and judgment for the plaintiff. At the trial of the case below the Court rejected the prayers offered, both by the plaintiff and the defendant, except *217 one as to the assessing of damages, and gave the following instructions in lieu thereof:

(1.) “If you find that the plaintiff’s injury was occasioned by any want of ordinary care or skill on the part of the defendant’s driver, such as by starting his car prematurely, or without affording the plaintiff a reasonable opportunity, under the circumstances, of taking a safe position, or otherwise, she is entitled to recover.”

(2.) “But if you find any failure of the plaintiff at the time to exercise ordinary care on her part, as by attempting to leave the car while in motion, or otherwise, and that the same directly contributed to the accident in such wise that without such failure the accident would not have occurred, then the defendant is entitled to a verdict, unless yon further find that the peril to which the plaintiff so exposed herself could have been discovered by the driver in time for him, by the exercise of ordinary care on his part, to have avoided the accident.”

(3.) “ By ordinary pare is understood that degree of caution, attention, activity and skill, which are habitually employed by, or .may reasonably be expected from, persons in the situation of the respective parties, under all the circumstances surrounding them at the time.”

(4.). “The burden of proof is on the plaintiff to show want of ordinary care on the part of the defendant’s agent, and on the defendant to show contributory negligence on the part of the plaintiff; but the plaintiff is entitled to the benefit of the presumption, that persons ordinarily take care of themselves, and the defendant is entitled to the benefit of the principle that in exceptional cases persons are heedless; and it is for the jury to find from all the circumstances in evidence upon the principles laid down, whether either of the parties, and which of them, was responsible for the accident.” To the granting of these instructions, and to the rejec *218 tion of the defendant’s prayers, the defendant excepted. The only question, therefore, presented hy this appeal is the correctness of the Court’s instructions in lieu of the rejected prayers. If the Court below was right in rejecting the prayers offered hy both plaintiff and defendant, and substituting its own, and they contained the correct principles of law, governing such a case, and the defendant suffered no injury thereby, then the judgment, below will have to be affirmed. Testimony was taken at the trial showing the circumstances under which the accident occurred. The plaintiff testified that on the night of the 3rd of November, 1889, she and one Sarah Simms were returning from church to their homes; that at the corner of Aisquith and Preston streets, in Baltimore City, she hailed a car of the defendant with the purpose of riding to Madison avenue; that the car stopped for them to get on, that other passengers entered the car from the opposite side of the platform, and were in the car when she started to get in; that while she was attempting to get on the car the driver stopped, and she just got her foot on the car and had hold with her hand, when the car started, and threw her in the street; that the driver started before she got on the ear, whereby she sustained personal injuries which temporarily disabled her from pursuing her business of a laundress, causing her great physical pain, and from which she was confined to her bed for three weeks. The witness, Sarah Simms, also testified, that she was standing behind the plaintiff, with her hand on the rail; that the plaintiff was on the bottom step, and she saw the plaintiff when she “tumbled off the car, off of the step.” The evidence on the part of the defendant was somewhat contradictory; the driver of the car stating, that he saw the plaintiff on the platform of the car before starting, while the witness, Wagner, stated that the plaintiff only got as far as the step, on account of the crowded condition of the car, and fell in consequence *219 of attempting to get off again while the car was in motion. We cannot, however, perceive from an examination of the facts of this case, in what manner the defendant was injured hy the rejection of its prayers, and hy the substitution of the Court’s instructions. There were hut two questions for the Court to pass upon, that of negligence aud of contributory negligence; and the law governing each has been settled hy too many adjudicated cases of this Court, to need citation of authorities in its support at this date. The first prayer correctly instructed the jury in substance, that if they found that the defendant had been negligent, and that the plaintiff’s injury had been caused by this negligence, then she could recover. The second instruction clearly set forth the doctrine of contributory negligence as within the rules laid down hy this Court, in the cases of Balto. & Ohio R. R. Co. vs. Mulligan, 45 Md., 490 , and Western Maryland R. R. Co. vs. Carter, 59 Md., 309 . The third instruction simply defined what constituted ordinary care, in contemplation of law, and was entirely proper and correct.

(Decided 9th April, 1891.)

That portion of the fourth instruction which refers to “the presumption that persons ordinarily take care of themselves, and in exceptional cases persons are heedless” might have been omitted, and, while we do not approve of it, yet we do not see what material effect it could possibly have Lad upon the verdict under the facts and circumstances of this case, as the whole question of contributory negligence was fairly left to the jury. Finding no error, the judgment will be affirmed.

Judgment affirmed.