Baltimore & O.R. Co. v. Shipley

• Decision Date: 24 November 1869
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. HENRY D. SHIPLEY, By His Next Friend, G. L. Shipley.
• Court: Maryland Court of Appeals

31 Md. 368

THE BALTIMORE AND OHIO RAILROAD COMPANY v. HENRY D. SHIPLEY, By His Next Friend, G. L. Shipley.

Court of Appeals of Maryland

November 24, 1869

Appeal from the Superior Court of Baltimore City.

This action was brought by the appellee to recover damages for an injury to his person, caused by his being caught between two railroad cars of the appellant, and having his arm injured.

In the course of the trial the plaintiff's counsel asked the father of the plaintiff the following question:

"How many have you in your family, and what are your means of support?"

To this question and to the answer thereto the defendant objected but the court allowed the question to be put, and the answer which was as follows, "I am a carpenter; I support myself by my labor, and have a wife and five children,"--to be given to the jury.

This ruling of the court forms the ground of the appellant's first exception.

In other respects the case is fully stated in the opinion of the court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ALVEY, JJ.

Ferdinand C. Latrobe, for the appellant.

R. J. Brent and J. L. Brent, for the appellee.

Miller J., delivered the opinion of the court.

This is an action to recover damages for an injury to the plaintiff alleged to have been caused by the negligence of the defendants in the management of their engine and cars.

No exception was taken to the granting of the plaintiff's first prayer, and the defendant's first and third were conceded. In most cases of this kind some general instructions like these are the only guides practically useful or necessary to be given by the court, the rule being that negligence is a question for the jury to decide, upon all the facts and circumstances of each case. But while this is the general rule, cases may and do sometimes occur, where the court is required to declare some glaring act of carelessness on the plaintiff's part to be, in law, such contributing negligence as will prevent a recovery, or, on the other hand, where the proof of negligence on the part of the defendant is so slight and inconclusive in its nature as to demand from the court an instruction as to its legal insufficiency to prove negligence, in order to prevent the jury from indulging in wild speculation or irrational conjecture. The defendants have supposed this to be such a case, and accordingly by their second and sixth prayers sought to have the jury instructed that upon finding the facts therein stated, there was such negligence on the part of the plaintiff directly contributing to the injury, as to prevent a recovery; in other words, that the act of the plaintiff in attempting to cross the street under the circumstances stated in each of the prayers, amounted in law to contributing negligence. These prayers asserting that certain facts amount to negligence, and upon finding them the plaintiff cannot recover, and the verdict of the jury must be for the defendants, necessarily concede the truth of all the other evidence in the cause, and all legitimate inferences therefrom tending to disprove negligence, and if, independent of the hypotheses of fact stated in the prayers, there is proof from which the jury might fairly infer absence of negligence in the plaintiff, there was clearly no error in rejecting them. A slight examination of the prominent facts disclosed by the testimony will demonstrate the correctness of their rejection.

The plaintiff, a lad about fourteen years of age at the time gives a very clear account how the accident occurred. His statement in substance is, that having been at work all day in his employment of driving an express wagon, he left the Camden station about dark to walk to his home on West Baltimore street, near Pine; that he hurried along, wanting to get his supper; and as he came from Camden to Eutaw he intended to cross the latter street there, and walk up on its west side, but found it blocked up with cars reaching across Camden street; that he then went up Eutaw, on its east side, as far as Dover street, where he saw an opening of some ten feet or more between the cars south and north of that street, which he attempted to pass through in order to cross Eutaw street, but when he got into the gap the cars moved up, closing the space rapidly; that he immediately jumped...