Bently, Shriver & Co. v. Edwards
| Decision Date | 23 March 1905 |
| Citation | 60 A. 283,100 Md. 652 |
| Parties | BENTLY, SHRIVER & CO. v. EDWARDS. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Henry D. Harlan, Judge.
Action by Charles L. Edwards against Bently, Shriver & Co. From a judgment in favor of plaintiff, defendants appeal. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.
Dallett H. Wilson and Alfred Jenkins Shriver, for appellants.
M Starr Weil, for appellee.
In this case the appellee (plaintiff below) sued the appellants (defendants below) in the Baltimore city court to recover damages for injuries received by the appellee from an accident caused by the alleged negligence of an employé and servant of the appellants. From a judgment rendered against them in the court below in such suit, the appellants have brought this appeal. At the trial of the case below, seven exceptions were taken by the appellants to rulings of the court upon offers of testimony, and one to the action of the court in rejecting certain instructions proposed on their behalf for submission to the jury, and certain others which sought to withdraw the case from the consideration of the jury.
The appellants carry on in the city of Baltimore a wholesale grocery business in premises situated on South street, in said city. This street runs north and south, and the premises of the appellants are on the west side of the street. On the opposite or east side of the street are the premises occupied by the Maryland Candy Company. The plaintiff's employment is that of a driver of a truck, and on the day of the accident in question he hauled from one of the depots of the city a load, consisting of cases and barrels, to the premises of the candy company, for delivery to said company; driving his truck, according to his testimony, "right up to the curb" in front of these premises on South street--his truck facing south. Having reported to the shipping clerk of the candy company, and received instruction from him to "unload where he then was," he went back to his truck, got upon and crossed over the footboard, and then putting his right foot on the footboard, and the left on the hub of the right front wheel, was proceeding to untie a rope with which it had been necessary for him to secure his load upon the truck, in "the customary way, and the way in which he always did it," when, as he alleges and testifies, he was struck by a heavily laden truck approaching from the south, which he had not seen, and which, by reason of having his back to the direction from which it approached, he could not see, and thus received the injuries of which he complains. The appellants, in connection with their business, have trucks and drays in use for hauling goods to and from their place of business as occasion may require, and the drivers of the vehicles so used are among their regular employés. It is in evidence that the truck which the plaintiff alleges struck and injured him, as described, belonged to the appellants, and was at the time of the accident in charge of, and being driven by, one Winfield Carpenter, a regular driver for, and a servant of, the appellants. There is some contradiction in the evidence as to how the accident happened; it being testified on behalf of the appellee that he was knocked from his position by the passing truck, and on behalf of the appellants that he jumped to the ground, and was then caught by the vehicle driven by Carpenter. There is practically no dispute as to the other facts that have been mentioned as in evidence. This is as far as reference need be made to the evidence in the case until we have disposed of the eighth exception--the one taken to the action of the court upon the prayers.
At the conclusion of the testimony the plaintiff (appellee) asked of the court two instructions to the jury, and the defendants (appellants) ten. The court granted both of the instructions asked for by the plaintiff, and the first and second of those asked for by the defendants. As to the others of the defendants' prayers, the record states: This is the only exception to the court's action on the prayers, and this will now be considered.
In the first prayer of the plaintiff, the court instructed the jury that the plaintiff was entitled to recover if they should find that at the time of the accident the plaintiff was "using due care and prudence"; that he was injured by being struck by a truck belonging to the defendants "while being driven by Carpenter; that Carpenter was at the time in the service of the defendants, and acting in the course of his employment; and that the plaintiff was "struck, thrown down, and injured by reason of the want on the part of the said _____ Carpenter of such ordinary care and prudence as drivers of ordinary care and prudence exercise under similar circumstances in driving along a thoroughfare such as they may find the one in question to have been." In the plaintiff's second instruction the jury were informed as to the allowance of damages in case they found for the plaintiff. By the first prayer of the defendants, the jury were instructed that, in order to recover, the plaintiff must prove "that the defendants or their driver had been guilty of some act of negligence, and that by their act or omission have violated some duty incumbent upon them, which has caused the injury complained of," and that the defendants were "not responsible for injuries resulting from unavoidable accident"; and by defendants' second prayer, that the plaintiff could not recover if the jury believed "that want of ordinary care and prudence on his part contributed to the injuries he received." If the instructions granted by the lower court are open to criticism in any respect, they cannot be reviewed on this appeal, because the record does not disclose that any exception was taken to the action of that court in respect to them, and does not, therefore, present here any question of their propriety.
We come now to the rejected prayers of the appellants, as to which the action of the trial court is brought up for review by their eighth exception. Of these prayers, the fourth and sixth asked the court to rule that the plaintiff was not entitled to recover, because of there being an insufficiency of evidence to support a recovery; and the seventh asked the court to so rule by reason of the state of the evidence as to contributory negligence on the part of the plaintiff. Manifestly, if the trial court was right in granting the plaintiff's prayers, the prayers of the appellants, to which particular reference has just been made, were properly refused. The plaintiff's prayers could only have been granted upon the assumption that there was a state of evidence that it was proper to submit to the jury as a basis for the plaintiff to recover; and, of course, the court could not tell the jury that upon that same state of evidence the plaintiff could not recover at all. For the reasons already given, we must assume, upon this record, that the action of the trial court in granting the plaintiff's prayers was correct; and, as a necessary consequence of that, the rejection of the fourth, sixth, and seventh of the appellants' prayers must be affirmed.
While it is not necessary to give further reasons for an affirmance of the action of the trial court as to the prayers of the appellants which have just been considered, it may be proper to add that the evidence set out in the record has been carefully examined in this connection, and has not been found to warrant such instructions.
We think, also, that all of the remaining prayers of the appellants were properly rejected. They are all constructed upon the theory of the plaintiff being at the time of the accident here in question a servant of the appellants, and a fellow servant of the driver of their truck, through whose alleged negligence the accident occurred. The fifth prayer asks the court to say, as a matter of law, from the evidence that the plaintiff and the said driver (Carpenter) were fellow servants. To have granted such an instruction would have been in direct contravention of admitted facts and other uncontradicted evidence appearing in the case. As all other questions to be passed upon here arise in this aspect of the case, we may as well examine now the evidence bearing upon it. This is to the effect that in the fall of 1902 plaintiff was driving a team for William H. Burmeister, whose business it was to hire out teams; that he was employed by Burmeister to drive a team which Burmeister furnished to the Maryland Candy Company; that the team so furnished to the candy company was first driven by Burmeister's son, and then by the plaintiff, who was paid by Burmeister; that on Saturday evening next preceding the day of the accident the shipping clerk of the Maryland Candy Company, having received a notice from the railroad company that there was some freight for the candy company at the depot, gave the notice, with some money, to the plaintiff, with instructions to go for the freight the first thing Monday morning following; that the plaintiff took his team to Burmeister's stable, and gave the notice and money to Burmeister, who kept them, and told him (Burmeister) that he (the plaintiff) was told to bring the freight in on Monday. On Monday morning following the plaintiff reported to Burmeister, received from him the notice and money for freight charges, went to the depot, loaded his wagon with a couple of cases and some barrels, and drove with...
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