City & Suburban Ry. of Washington v. Clark
| Decision Date | 05 April 1916 |
| Docket Number | 38. |
| Citation | 97 A. 996,128 Md. 281 |
| Parties | CITY & SUBURBAN RY. OF WASHINGTON v. CLARK. |
| Court | Maryland Court of Appeals |
Rehearing Denied May 5, 1916.
Appeal from Circuit Court, Prince George's County; B. Harris Camalier and Fillmore Beall, Judges.
Suit by John F. Clark against the City & Suburban Railway of Washington. From a judgment for plaintiff, defendant appeals. Judgment affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
S Russell Bowen and Robert W. Wells, both of Washington, D. C for appellant. T. Howard Duckett, of Washington, D. C. (Marion Duckett, of Washington, D. C., on the brief), for appellee.
This suit was instituted by the appellee to recover damages occasioned by a collision between a wagon of the plaintiff upon which he and a driver by the name of Hill were riding, and a car of the City & Suburban Railway of Washington. The accident took place in Brentwood, Prince George's county, at a point where the tracks of the appellant were crossed by a public street, known as Henry street. By the collision the plaintiff was thrown from his wagon and severely bruised, and the rear portion of the wagon demolished. The record is in an unusual form, one in which it is extremely difficult to trace the case satisfactorily. No exceptions were reserved upon any question of evidence, but the first four were to the action of the court upon certain enumerated prayers, and the fifth was an exception to the overruling of the motion for a new trial, and to the entry of a judgment on the verdict of the jury.
With regard to the fifth exception, it is sufficient to say that it has been repeatedly held by this court that no appeal will lie from the action of the lower court on a motion for a new trial. Railway Co. v. Sewell, 35 Md. 238, 6 Am. Rep. 402; Sauer v. Schulenberg, 33 Md. 288, 3 Am. Rep. 174; Waters v. Waters, 26 Md. 53; Zitzer v. Jones, 48 Md. 115. That portion of this exception which relates to the entry of the judgment upon the verdict of the jury was necessarily dependent, so far as appears from the record, either upon the ruling of the court on a question of law embodied in court's action on the prayers submitted to it, or else upon a question of fact which was fully covered and disposed of by the action of the court upon the motion for a new trial. There is therefore nothing in this exception which calls for any extended discussion, as the ruling of the court upon the prayers is more appropriately considered under the special exceptions taken to the action of the court upon those prayers.
At the conclusion of the plaintiff's evidence, the defendant offered what is called the "defendant's first prayer," which is in the following terms:
"Now comes the defendant, City & Suburban Railway of Washington, by its attorneys Robert W. Wells and S. R. Bowen, and moves the court to take the above-entitled case from the jury."
This was refused by the court, whereupon the defendant proceeded to offer evidence in its behalf. The effect of the defendant presenting that evidence has been repeatedly held by this court to amount to a waiver of any exception to which the defendant might have been entitled, and does not present a matter that this court is now called upon to discuss. Bernheimer v. Becker, 102 Md. 250, 62 A. 526, 3 L. R. A. (N. S.) 221, 111 Am. St. Rep. 356; Barabasz v. Kabat, 91 Md. 53, 46 A. 337.
But independent of that fact, the action of the court below in refusing the motion was undoubtedly correct, both by reason of the evidence which will have to be discussed under another of the exceptions, and also because the motion or prayer was too general in its terms. In Turner v. Eagan, 116 Md. 35, 81 A. 877, Palatine Ins. Co. v. O'Brien, 107 Md. 341, 68 A. 484, 16 L. R. A. (N. S.) 1055; Neighbors v. Leatherman, 116 Md. 484, 82 A. 152; Thomas on Prayers and Instructions, § 30; Conowingo Land Co. v. McGaw, 124 Md. 643, 93 A. 222. This covers the first bill of exceptions.
At the conclusion of the entire evidence, the defendant offered a prayer, as follows:
"The jury are instructed that there is no legally sufficient evidence upon which they can base a verdict for the plaintiff in this case, and the verdict must be for the defendant."
This was refused by the trial court, and the action constitutes the second bill of exception. The first prayer of the plaintiff had been conceded by the defendant, and therefore, whether it was correct or not, had become the law of the case. Zell v. Dunaway, 115 Md. 1, 80 A. 215; Hillers v. Taylor, 116 Md. 165, 81 A. 286; Groh v. South, 119 Md. 297, 86 A. 1036.
By that prayer the jury had been told that if they believed from the evidence that the injury to the plaintiff was caused by the want of ordinary care and prudence of the servant of the defendant, and that the plaintiff had used reasonable care and caution in driving across the tracks of the defendant, the plaintiff was entitled to recover.
The second prayer of the defendant, which sought to take the case from the jury after having conceded the prayer which submitted the question to the jury, made it inconsistent with the plaintiff's first prayer, and to have granted it would have been error. Smith v. Brown, 119 Md. 236, 86 A. 609.
The third exception was to the granting of the plaintiff's second prayer, which was:
"If the jury find from the evidence that the plaintiff approached the crossing of the defendant's tracks at...
To continue reading
Request your trial