Baltimore City Pass. Ry. Co. v. McDonnell

• Decision Date: 29 February 1876
• Parties: THE BALTIMORE CITY PASSENGER RAILWAY COMPANY v. ELLEN MCDONNELL, by her next friend, THOMAS MCDONNELL.
• Court: Maryland Court of Appeals

43 Md. 534

THE BALTIMORE CITY PASSENGER RAILWAY COMPANY v. ELLEN MCDONNELL, by her next friend, THOMAS MCDONNELL.

Court of Appeals of Maryland

February 29, 1876

APPEAL from the Circuit Court for Anne Arundel County.

This is an appeal taken by the defendant below, from a judgment rendered against it in an action brought by the appellee to recover damages for a personal injury. The plaintiff, a child slightly over two years of age, ran in the way of a passing car of the defendant, on one of the streets of the City of Baltimore, and received the injury in question.

First Exception.--The plaintiff, after producing evidence of the happening of the accident, introduced the testimony of a witness who stated that "she did not know the rate of speed at which the car was going, but it was running faster than ordinarily, and a man would have to run very fast to keep up with it," and of another witness who testified that "she heard the car coming, and from the sound of the bells she thought it was coming at full speed." The plaintiff then offered to read to the jury the ordinance of the Mayor and City Council of Baltimore prohibiting a greater rate of speed than six miles per hour. The counsel objected to the said ordinance being offered in evidence, upon the ground that there was no sufficient evidence to show that the car was running more than six miles per hour, and the plaintiff's counsel did not accompany the offer with any statement that they expected to offer any further evidence, for the purpose of showing that the car was going at a rate of speed exceeding six miles per hour. But the Court, (HAYDEN and HAMMOND, J.,) admitted the said ordinance to be read in evidence to the jury. The defendant excepted.

Second Exception.--After the introduction of other evidence not necessary to be detailed, the defendant proved by Thos. Jenkins, the agent in charge of the line of cars running in Albemarle street, that Thomas McDonnell, the next friend of the plaintiff, but who was not present at the time of the accident, is the father of the plaintiff, that he saw him on the night immediately succeeding the afternoon of the accident, and that he had a conversation with him in reference to how the said accident occurred, and then offered to prove that in the said conversation the said father and next friend of the plaintiff had stated "that he did not blame Mr. Mules, the driver, at all, and that the child was injured through a pure accident," but the plaintiff, by her counsel, objected to the admissibility of the said evidence for any purpose, and the Court, upon the objection of the counsel for the plaintiff, refused to allow the said conversation and statement to be given in evidence for any purpose. The defendant excepted.

Third Exception.--The plaintiff thereupon offered the five following prayers:

1. If the jury find from the evidence that the plaintiff was injured by being knocked down and run over by the car of the defendant, and that such injury might have been avoided by the exercise of ordinary care and prudence on the part of the defendant, or its servants or agents, then their verdict will be for the plaintiff, unless they shall find that the injury complained of resulted from the want of such care and prudence on the part of the plaintiff as ought, under all the circumstances, to have been reasonably expected from one of her age and intelligence, or from the want of ordinary care and prudence on the part of her parents, directly contributing to the accident.

2. If the jury find from the evidence that at the time of the accident, the car in question was being driven at a rate of speed greater than six miles per hour, in violation of the ordinance of the Mayor and City Council of Baltimore, and shall further find that if said car had not been running at a greater rate of speed than six miles per hour, the accident could have been avoided, then there was a want of ordinary care on the part of the defendant, as mentioned in the plaintiff's first prayer.

3. The plaintiff will not be prevented from recovering in consequence of any negligence on the part of the child's mother, if the jury shall find that the driver of the car in question, by the exercise of ordinary care and caution, might have seen the child and stopped the car in time to have avoided the accident.

4. If the jury find for the plaintiff, in estimating the damages they are to consider the health and condition of the plaintiff before the injury complained of, as compared with her present condition, in consequence of said injury, and whether the said injury is in its nature permanent, and how far it is calculated to disable the plaintiff from engaging in those industrial pursuits and employments for which, in the absence of such injury, she would be qualified, and also the physical and mental suffering to which she was subjected by reason of the said injury, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injury which the plaintiff has sustained.

5. In considering whether there was any negligence on the part of the mother, the jury should take into consideration her condition and state in life, her ability or inability to provide a nurse for her child, the household duties she had to perform; and they may also consider the natural affection of a mother for her child, and her desire to shield it from danger.

And the defendant offered the nine prayers, as follows:

1. If the jury shall find from the evidence in the cause that the plaintiff, at the time of the accident, was a child of such tender age as not to possess sufficient discretion to avoid danger, and that the said child was negligently suffered by her mother to be on the public highway in the City of Baltimore, where the cars of the defendant were in the habit of passing, without any one to guard her, and that the child, when on the public highway, suddenly got upon the track of the defendant, in front of the car of the defendant, and that the child was injured by a car of the defendant driven by an employé of the defendant, and that the said injury would not have occurred but for the negligence of the mother of the said child, in suffering her to be on the said highway or street without any one to guard her, then the plaintiff is not entitled to recover.

2. If the jury shall find from the evidence in the cause that the plaintiff was a child of such tender age as not to possess sufficient discretion to avoid danger, and that the said child was suffered by its mother to be on Albemarle street, without any one to guard her, and that Albemarle street is a public thoroughfare in the City of Baltimore, and that the cars of the defendant were in the habit of passing along said street, and that the said child was liable to be injured in the said street, when there without any one to guard her, then it was prima facie evidence of negligence on the part of the mother of the said child, to suffer the said child to be in the said street without any one to guard it.

3. If the jury find that the plaintiff, at the time of said accident, was a child too young to take care of itself in a street, such as Albemarle street, but was allowed by those having charge of her to go out upon said street unprotected and unattended, and that said child thereupon ran in the way of the said car in a manner and under circumstances which amounted to negligence, and in consequence thereof, received the injury complained of, and that the driver, as soon as he perceived said child, endeavored to stop the said car, but was unable to do so in time, then the plaintiff cannot recover.

4. If the jury shall find that the plaintiff was an infant aged about two years and two months, and was in charge of its mother shortly prior to the injury, and in consequence of the negligence of the mother, she ran out into Albemarle street in the way of a car of the defendant, which was passing down Albemarle street, and that but for the negligence of its said mother, directly contributing to the accident, the accident complained of would not have occurred, then the plaintiff cannot recover in this action, but the verdict of the jury must be for the defendant.

5. If the jury shall find that at the time of the happening of the injury complained of, Albemarle street was one of the streets of the City of Baltimore, upon which the passenger railway cars of the defendant were accustomed to pass, and that the plaintiff was a child of two years and two months of age, and that said child was suffered by its mother to go upon said street unattended, and in consequence of being so unattended, ran upon the track of the defendant in front of said car, and that the driver of said car thereupon endeavored to stop the said car, but was unable to do so in time to prevent said child from receiving the injury complained of, and that if the said child had not been so suffered to go without attendance, that the accident would not have happened, then the verdict of the jury must be for the defendant.

6. If the jury shall find from the evidence in the cause, that the plaintiff, Ellen McDonnell, attempted to pass in front of the car of the defendant while the same was in motion, across the track of the defendant, and when the said car was so near the plaintiff as not to permit of the plaintiff passing safely across the defendant's track, then the plaintiff is not entitled to recover.

7. If the jury shall find from the evidence in the cause, that the plaintiff attempted to pass across the track of the defendant, in front of the car of the defendant while in motion, and when only a few feet in front of the said car and was run upon and injured, she is not entitled to recover for the injury sustained; the attempt to pass...