Baltimore Traction Co. v. Appel

Briscoe, J.,

delivered the opinion of the Court.

The appellee brought suit against the appellant, a street railway company operating its lines in the city of Baltimore, for injuries sustained by reason of the negligence of one of its employees while propelling an electric car on the public streets of that city. The case was tried before a jury and, the judgment being for the plaintiff, the company has appealed. The questions arise solely upon exceptions to the rulings of the Court upon the prayers and a construction of the Act of 1894, chapter 185, relating to “Special Findings of Facts by Court or Jury,”

Upon the close of the plaintiff’s testimony, the Court was asked to withdraw the case from the jury; first, because of the contributing negligence of the plaintiff; and secondly, because there was no legally sufficient evidence to entitle the plaintiff to recover. And the failure of the Court to so instruct the jury forms the basis of the first bill of exception. In refusing to grant these prayers or either of themj the Court committed no error, because there was evidence, if the jury believed it, to entitle the plaintiff to recover.

*609 The Court having refused at this point of the case to take the case from the jury, the appellant offered its evidence, and the second exception embraces the rulings of the Court at the close of the testimony upon the prayers of both plaintiff and defendant. There were seventeen prayers in all. The first, second, fourth and fifth prayers of the plaintiff were granted and the third rejected. All of the defendant’s prayers were rejected except its twelfth, and the Court granted in lieu of the rejected prayers an instruction of its own, which we will hereafter consider.

The first, second and fourth prayers of the plaintiff were properly granted, and have been approved in recent street railway cases decided by this Court. Baltimore Traction Co. v. Wallace, 77 Md. 435 ; Central Railway Co. v. Coleman, ante, p. 328; Arnreich's case, 78 Md. 589 ; Cooke v. Traction Co., ante, p. 551.

The fifth prayer related to the measure of damages in the event of a verdict for the plaintiff, and was not seriously controverted by the defendant.

By the first, second and third prayers of the defendant, which had been previously rejected, the question as to what constitutes contributory negligence, was sought again to be made one of law for the Court rather than one of fact for the jury to determine, upon the facts of the case. This Court has repeatedly decided that the question of negligence or the want of ordinary care where there was a contrariety of evidence in cases like the one here presented, is one of fact for the jury. This is the approved doctrine both in England and this country, and we deem it unnecessary to refer again to the adjudicated cases bearing upon it. As already stated, these prayers, under the facts of this case, were properly rejected.

The prayer granted by the Court in lieu of the other rejected prayers of the defendant fully and fairly covered the law of the case. It told the jury that if the plaintiff was guilty of the want of reasonable and ordinary care in attempting to cross the tracks of the defendant under the *610 circumstances of this case, then he is not entitled to recover, unless the motorman could have avoided the accident by the use of ordinary care after he saw, or by the use of ordinary care might have seen, that the plaintiff was on the track, and was in danger of being struck by the car.

The' third bill of exception involves an important question of practice under the Act of 1894, chapter 185, allowing in this State special findings of fact, in all cases where issues of fact are submitted to Court or jury. This Act provides that: “ In all cases where issues of fact are submitted to a jury the Court may, at its own discretion, or shall, at the request of either party, require the jury, in addition to rendering a general verdict for the plaintiff or defendant, to find specially upon any particular questions of facts material to the issues on trial, which questions shall be in writing; and in all cases at law where issues of facts are tried before a Court without a jury, the said Court, at the written request of either party, find specially upon any question of fact which it may deem necessary to be determined in order to arrive at its verdict. All such special finding of facts, whether by the jury or by the Court, shall be in writing, and must be filed with the Clerk as part of the record of the case, and in civil cases, where a special finding of facts shall be inconsistent with the general verdict rendered at the same trial, the former shall control the latter and the Court must give judgment accordingly ; but nothing herein contained shall limit the Court’s power to grant a new trial or to arrest judgment on motion.”

In the case before us, the Court refused to submit the special questions, because they were too late, not having been requested until after the arguments had been concluded and the jury were about to retire. It will be observed that while the statute imperatively requires the Court, at the request of either party, to instruct the jury, in addition to rendering a general verdict, to find specially upon particular questions of fact, material to the issue, yet it nowhere prescribes the- time when the request shall be *611 made or when they shall be presented to the Court. It is clear, then, that the law leaves it to the sound discretion of the trial Court. The Supreme Court of Indiana so held in the case of Kopelke v. Kopelke, 112 Ind. 435 , and reaffirmed in Hartlep et al. v. Cole, 120 Ind. 253 , in construing a similar statute. And to the same effect is Thompson on Trials, page 2021.

(Decided March 26th, 1895.)

The better practice, we think, independent of any rule of Court, would be to make the request at the time of the submission of the prayers; certainly not later. Manifestly it is too late, after the close of the argument and the jury about to retire. The action of the Court in rejecting the request in this case was not error.

Finding no reversible error in .any of the rulings of the Court upon either the prayers or special findings of fact, and as the case was properly submitted, we shall affirm the judgment.

Judgment affirmed with costs.