8 A. 272 (Md. 1887), Philadelphia, W. & B.R. Co. v. State

Citation:8 A. 272, 66 Md. 501
Opinion Judge:ALVEY, C.J.
Party Name:PHILADELPHIA, W. & B. R. CO. AND ANOTHER v. STATE, USE OF GUNTHER.
Attorney:Bernard Carter and John J. Donaldson, for appellant. J. I. Alexander and R. W. Applegarth, for appellee.
Case Date:January 28, 1887
Court:Court of Appeals of Maryland
 
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Page 272

8 A. 272 (Md. 1887)

66 Md. 501

PHILADELPHIA, W. & B. R. CO. AND ANOTHER

v.

STATE, USE OF GUNTHER.

Court of Appeals of Maryland

January 28, 1887

Appeal from the Baltimore city court.

Bernard Carter and John J. Donaldson, for appellant.

J. I. Alexander and R. W. Applegarth, for appellee.

ALVEY, C.J.

In this case there is but a single exception, and that was taken by the defendants to the granting by the court of the plaintiff's first prayer, and the rejection by the court of the second, third, fourth, sixth, and seventh prayers of the defendants. The defendants made special exception to the plaintiff's first and other prayers, upon the ground that there was no evidence legally sufficient to support them, but as to the first of those prayers the objection was overruled. We have examined carefully the evidence set out in the record, and are of opinion that there was evidence legally sufficient to require the case to be submitted to the jury. We shall not, however, enter into any recital of the facts; but whether the accident was occasioned by the negligence of the defendants' agents exclusively, if by their negligence at all, or by that of the equitable plaintiff alone, or by the negligence of the defendants' agents and that of the equitable plaintiff operating concurrently, were questions proper for the jury to determine, under all the facts of the case.

But, while the court was correct in overruling the objection to the legal sufficiency of the evidence, we are of opinion that there was error committed in granting the first prayer offered on the part of the plaintiff. By that prayer the jury were instructed that if they found that the accident occurred by the willful act, default, or negligence of the defendants, or either of them, or of their servants, then the jury might find for the plaintiff, with such damages, etc. As an abstract proposition the prayer is correct enough, but in view of the evidence it is faulty. The error of the instruction consists in the entire omission to require the jury to pass upon the question of the contributory negligence of the equitable plaintiff. The evidence reflecting upon that question was entirely ignored by the terms of the instruction, and yet the jury were told that they could find for the plaintiff upon the inculpatory facts stated in the prayer. This was calculated to mislead, to say the least of it. As...

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