Baltimore & Y. Turnpike Road v. Leonhardt
| Decision Date | 24 June 1886 |
| Citation | 5 A. 346,66 Md. 70 |
| Parties | PRESIDENT, ETC., OF THE BALTIMORE & YORKTOWN TURNPIKE ROAD v. LEONHARDT. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court.
A W. Machen, for appellant.
James Pollard and H. W. Latane, for appellee.
The appellant is a corporation owning a railway on which cars for the transportation of passengers are drawn by horses. The railroad tracks traverse some of the streets of Baltimore and extend as far as Towson. While a passenger in one of the appellant's cars, the appellee sustained bodily injuries, and he has brought this suit for the recovery of damages. There is very little controversy about the facts of the case. The car in which the appellee was a passenger was of the kind usually called a double-decker, having two compartments for passengers, one above the other. Two of the appellant's tracks cross an iron bridge over Jones' falls,--one on the north side, and the other on the south side, where Hillen street meets Pleasant. The appellee was occupying a seat in the upper section of the car, at the extreme front, nearest the driver. When the car reached Front street, about a hundred feet east of the bridges, he rose from his seat, and walked towards its rear end, for the purpose of descending to the platform, desiring to leave the car shortly after it should have passed the bridge. While walking in this direction, with his back, of course, towards the driver, his right elbow came in violent contact with a portion of the bridge. He received an injury which is described by a medical witness as a fracture of one of the inner bones of the arm, with considerable straining of the ligaments. The bridge is divided by a central truss or abutment, on each side of which the tracks run. It is stated in the evidence that each track is 24 inches from this central truss, and that the side of the ordinary standard car is from 11 to 12 inches distant from it, and that the upper deck or portion of a double-decked car projects considerable over the lower portion, and its side is distant 5 inches from the truss. There is an iron plate or box on the side of the truss, with some ornamentation, which extends two inches and a quarter outwards. It will be seen that at this particular point the distance is two inches and three-quarters to a perpendicular line drawn from floor of the upper deck at the side next the bridge. These measurements are given by different witnesses with slight variation; but the purposes of the case do not require a more minute examination of these details.
Evidence was offered tending to show that the horses were trotting when the cars crossed the bridge, and an ordinance of the city of Baltimore was proved which provided that horses should not be driven over any of the bridges of the city at a gait faster than a walk. There was also evidence of a notice forbidding passengers to get on or off the cars while they were in motion. The mutual obligations existing between passengers and the public carriers who transport them have frequently been declared by the courts. The carrier does not warrant the safety of his passengers at all events; nevertheless, as far as human care and foresight can avail, he is bound to transport them safely. On the other hand, the passenger is bound to observe the reasonable rules and regulations made by the carrier for insuring the safety of passengers; and, of course, cannot be relieved from the necessity of using ordinary care and prudence on his part to avoid danger. There ought to be no difficulty in leaving these inquiries to the jury, where the evidence presents a proper case for their consideration. If, indeed, the conduct of the plaintiff below showed a reckless disregard of his safety, it was the duty of the court to declare, as matter of law, that it was such negligence as entitled the defendant to a verdict; but, if this were not the case, it was proper to leave it to the jury to decide whether he used such a degree of prudence as the occasion required. When a person leaves a car while it is in motion, he is affected by its momentum, and incurs more or less danger. It therefore seems to us a reasonable safeguard against accidents to forbid departure from the car at such a time. But the plaintiff was not violating this rule of the defendant when the accident occurred. He was walking on the upper floor of the car, on his way to the place where he was to descend to the lower platform. When he reached this platform, he would be in a position to depart from the car, and he would then be required to see that it was stopped before he left it. But, surely, it is very unreasonable to deny to a passenger the right to move about on the floor of a car while it is moving; and the concurring experience of the traveling public will show that such restraints are not imposed. It does not seem to us that we can declare that the act of the plaintiff was in law inexcusable negligence. It was a matter which the jury were properly required to consider in connection with the circumstances existing at the time; and, if they thought that it showed a want of reasonable caution, it was their duty so to find by their verdict.
The prayers offered at the trial which refer to the duty of the defendant require a careful examination.
The fifth on the part of the defendant presents the most important question in the case. It is in these words:
"The burden of proof, under the issues in this case, is upon the plaintiff to satisfy the jury that the injury which he complains of was produced by negligence on the part of the defendant; and, if the jury do not find from the evidence that it was produced by negligence on the defendant's part, then their verdict should be for the defendant."
The court, by granting the plaintiff's first prayer, imposed on him the burden of proving that the injury was caused by the negligence of the defendant, and, by granting the defendant's sixth, seventh, ninth, and eleventh prayers instructed the jury in very clear and positive terms that the plaintiff's right of recovery would be defeated if there was on his part any want of ordinary care which directly contributed to produce the injury. The majority of the court hold that, inasmuch as these instructions presented the case to the jury as favorably for the plaintiff as he had a right to require, the rejection of this prayer is no cause for a reversal. The writer of this opinion thinks, nevertheless, that it is better to consider on its own merits the legal proposition involved, and herein he desires to be understood as expressing merely his own views. It may be said that the plaintiff is bound to establish by evidence all the material averments in his declaration, and, as he has averred the defendant's negligence as the foundation of his action, the burden of proof is upon him to establish it. The proposition is most true when abstractly considered; and yet abstract propositions most usually mislead and perplex the judgment when they are stated without reference to the circumstances which justly modify their application. Let us consider the facts to which this prayer was applied. It was not controverted that the plaintiff had received an injury while traveling as a passenger in one of the defendant's...
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