Baltimore City Pass. Ry. Co. v. Wilkinson

• Decision Date: 09 March 1869
• Citation: 30 Md. 224
• Parties: THE BALTIMORE CITY PASSENGER RAILWAY COMPANY v. GEORGE N. WILKINSON.
• Court: Maryland Court of Appeals

30 Md. 224

THE BALTIMORE CITY PASSENGER RAILWAY COMPANY v. GEORGE N. WILKINSON.

Court of Appeals of Maryland

March 9, 1869

APPEAL from the Superior Court of Baltimore City.

This action was brought by the appellee to recover damages for an injury done him, through the alleged negligence of an agent of the appellant. The declaration contained five counts, to which the defendant pleaded that "it did not commit the wrongs alleged." Without expressing any opinion as to the sufficiency of the other counts, the Court (MARTIN, J.,) held that a sufficient cause of action was stated in the fifth count which is as follows:

For that the defendant is a corporation owning a railroad on Charles street in Baltimore city, between Read street and the northern limits of said city; and the plaintiff was upon the platform of a car on said road, for the purpose of placing the baggage of his wife thereupon, and his said wife was upon the point of entering said car as a passenger on said railroad, and by reason of the negligence and mismanagment of the driver or servant of the said defendant, the said plaintiff was thrown from the platform of the said car upon which he was standing, and the said car was run against, over and upon the said plaintiff, whereby he was greatly hurt, and his right arm permanently disabled; and the defendant did not use care in reference to the driving and management of said car, but the plaintiff did use due care.

The plaintiff presented two prayers and the defendant seventeen all of which the Court rejected, except the second prayer of the defendant, and instructed the jury as follows:

I instruct the jury, that if they shall find from the evidence that the plaintiff stopped the car of the defendant, as offered in evidence, and after said car had been stopped, got on the steps or platform of said car with a market basket and by himself and his wife, by the permission of the driver and agent of the defendant, for the purpose of securely placing the basket upon the platform, his wife following him with the intention of obtaining a seat in the said car as a passenger, and before he had time to go inside of said car or get off the same, the said car was started suddenly by the agent, driver or conductor of the defendant; and that in consequence of so starting the plaintiff was thrown from the said car and injured, as offered in evidence; and the jury shall further find that in so starting the said car, the agent, driver or conductor of the defendant, did not use such caution, care and diligence as a prudent and careful driver ought to have used, then the jury must find for the plaintiff; unless the jury shall find that the injury inflicted upon the plaintiff might have been avoided by the exercise of ordinary care and diligence on his part; but unless the jury shall find all the facts stated in the preceding part of this instruction to be true, then their verdict must be for the defendant.

If the jury shall find that the plaintiff's own want of due care contributed in any degree directly to the accident in question, so that if he had exercised due care it would not have occurred, then he is not entitled to recover in this action, although the jury shall also find that the driver of the car was guilty of negligence.

To the rejection of its prayers and to the instruction given by the Court, the defendant excepted. The verdict and judgment being for the plaintiff, the defendant appealed.

The cause was argued before BARTOL, C.J., GRASON, MILLER and ALVEY, J.

Arthur W. Machen, for the appellant:

Any question of substance, and not of mere form, concerning the pleadings, may be raised by a prayer; and, since the passage of the Act of 1825, ch. 117, the practice has been to raise them in this manner. Western Bank vs. Kyle, 6 Gill, 352; Leopard vs. Ches. and Ohio Canal Co., 1 Gill, 227; Graham vs. Harris, 5 G. & J., 495; Stockton vs. Fry, 4 Gill, 406; Burgess vs. Lloyd, 7 Md., 199; Dorsey vs. Dashiell, 1 Md., 207; Berry vs. Harper, 4 G. & J., 467; Busby vs. Conoway, 8 Md., 55.

The right of a party, before verdict, to require the Court to look at a particular count and pass upon it irrespective of the sufficiency or insufficiency of other counts, has been fully recognized. Bull vs Schuberth, 2 Md., 57.

While it may be conceded that it is seldom, if ever, possible to lay down an absolute and unbending rule that any particular acts constitute negligence in law; yet where, upon the undisputed facts in evidence, conduct is proved against one party or the other, which was in violation of a plain legal duty, and there is no evidence whatever tending to show any exigency such as could justify such a departure from an apparent duty, the Court may be called on to say that such violation of duty constitutes negligence prima facie, and (in the entire absence of evidence tending to remove the prima facie case) may instruct the jury to find accordingly.

The plaintiff did not intend to ride on the car, and therefore, prima facie, had no right to be there; would the fact (assuming it to be such) that his wife intended to become a passenger, justify the husband in getting on the platform to deposit his own market basket upon it?

Even if the wife had any inchoate rights as a passenger, the market basket had nothing to do with her in that relation, and was in no proper sense her baggage. And had it been her baggage, the plaintiff was not justified in getting upon the car with it--more especially in advance of her, and unaccompanied by her.

A rule of the Passenger Railway Company, known to every intelligent person in Baltimore who is accustomed to make use of their cars, and posted conspicuously in all the cars--knowledge of it being necessarily brought home to the plaintiff, who had often ridden in them before, requires all persons using any car to get on or off by the rear platform only. An observance of this judicious and easy regulation will almost exclude the possibility of accidents of a serious nature from the use of vehicles moving in straight lines at a rate not exceeding five or six miles an hour. Had it been observed by the plaintiff, the injury which he alleges could never have occurred. That the plaintiff's violation of this plain and reasonable rule of the company was inexcusable is manifest; and, under the undisputed circumstances of the case, it was negligence, and having directly entered into the accident, the plaintiff, conceding all the evidence offered on his own side, is not entitled to recover. Pennsylvania R. R. Co. vs. Ogier, 35 Penn., 71; Pennsylvania R. R. Co. vs. Zebe, 33 Penn., 326, 327.

William S. Waters, for the appellee.

BARTOL C.J., delivered the opinion of the Court.

Since the decision of the case of Leopard vs. The Chesapeake and Ohio Canal Co., 1 Gill, 222, followed by Stockton vs. Frey, 4 Gill, 406, and by a number of other cases, all recognizing the same rule, it must be considered as settled that where a prayer is asked, or an instruction is granted to a jury upon the evidence or facts in the cause merely, without reference to the pleadings, the appellate Court is precluded by the Act of 1825, ch. 117 (Code, Art. 5, sec. 12,) from considering the state of the pleadings. But it has always been competent for a party by a prayer properly framed, to call the attention of the Court to the pleadings, and to ask its judgment upon their sufficiency or legal effect; the rule being that every suitor must recover according to the allegata and probata. Berry vs. Harper, 4 G. & J., 467; Bull vs. Schuberth, 2 Md., 57; Burgess vs. Lloyd, 7 Md., 199; ...