Central Ry. Co. v. Smith

• Decision Date: 09 April 1891
• Parties: CENTRAL RY. CO. v. SMITH.
• Court: Maryland Court of Appeals

21 A. 706

74 Md. 212

CENTRAL RY. CO. v. SMITH.

Court of Appeals of Maryland

April 9, 1891

Appeal from superior court of Baltimore city.

T W. Blackistone and George Blackistone, for appellant.

C W. Johnson and George M. Lane, for appellee.

BRISCOE J.

This action was brought by the appellee against the appellant, the Central Railway Company, to recover damages for personal injuries alleged to have been sustained by the plaintiff while a passenger on the company's road, on account of the negligence of the company's employes. The defendant is a street-railway company operated by horse-power in the city of Baltimore, and its defense was contributory negligence on the part of the plaintiff. The case was tried before a jury, and resulted in a verdict and judgment for the plaintiff. At the trial of the case below the court rejected the prayers offered both by the plaintiff and the defendant except one as to the assessing of damages, and gave the following instructions in lieu thereof: "(1) If you find that the plaintiff's injury was occasioned by any want of ordinary care or skill on the part of the defendant's driver, such as by starting his horse-car prematurely, or without affording the plaintiff a reasonable opportunity, under the circumstances, of taking a safe position, or otherwise, she is entitled to recover. (2) But if you find any failure of the plaintiff at the time to exercise ordinary care on her part, as by attempting to leave the car while in motion, or otherwise, and that the same directly contributed to the accident in such wise that without such failure the accident would not have occurred, then the defendant is entitled to a verdict, unless you further find that the peril to which the plaintiff so exposed herself could have been discovered by the driver in time for him, by the exercise of ordinary care on his part, to have avoided the accident. (3) By ordinary care is understood that degree of caution, attention, activity, and skill which are habitually employed by, or may reasonably be expected from, personsin the situation of the respective parties, under all the circumstances surrounding them at the time. (4) The burden of proof is on the plaintiff to show want of ordinary care on the part of the defendant's agent, and on the defendant to show contributory negligence on the part of the plaintiff; but the plaintiff is entitled to the benefit of the presumption that persons ordinarily take care of themselves, and the defendant is entitled to the benefit of the principle that in exceptional cases persons are heedless; and it is for the jury to find from all the circumstances in evidence upon the principle laid down whether either of the parties, and which of them, was responsible for the accident." To the granting of these instructions, and to the rejection of the defendant...