Firor v. Taylor

• Decision Date: 22 June 1911
• Citation: 81 A. 389,116 Md. 69
• Parties: FIROR et al. v. TAYLOR.
• Court: Maryland Court of Appeals

81 A. 389

116 Md. 69

FIROR et al. v. TAYLOR.

Court of Appeals of Maryland

June 22, 1911

Appeals from Baltimore City Court; Thos. Ireland Elliott, Judge.

Action by Charles J. M. Taylor against Howard O. Firor and others. Judgment for plaintiff against defendants Firor and Saxton and they appeal separately. Reversed, and new trial ordered.

Plaintiff's amended declaration purported to charge Howard O. Firor, E Saxton, the Pittsburg Valve Foundry Construction Company, and the mayor and city council of Baltimore with a cause of action for injuries, and alleged that on March 21, 1910 plaintiff was rightfully on the pavement or sidewalk on the corner of Fayette and St. Paul streets, in Baltimore city and was exercising due and proper care, and while so rightfully on the pavement or sidewalk a wagon belonging to the defendant Howard O. Firor, and in charge and control of the agents and servants of the defendant Howard O. Firor, was driven along the public highway, near to the pavement or sidewalk, in a negligent and careless manner, which wagon was negligently and carelessly loaded by the agents and servants of the defendant E. Saxton with beams or timbers which protruded over such pavement or sidewalk, and the plaintiff was struck by the said timbers and his arm and shoulder bones were broken, and he was seriously and permanently injured; and by reason of the said negligent and careless acts of the "defendants" plaintiff was compelled to expend large sums of money for medical attendance, and was compelled to abandon the lucrative business in which he was engaged, and other wrongs then and there suffered and sustained, for which he demanded $10,000.

During the trial, plaintiff took a nonsuit as to the defendants Pittsburg Valve Foundry Construction Company and the city, and proceeded to judgment against defendants Firor and Saxton alone.

At the close of plaintiff's case, defendants Firor and Saxton having moved for a verdict on the theory that the complaint charged negligence against all the defendants, and that such allegation was not sustained by the proof, plaintiff asked leave in open court to amend the declaration, so as to charge that the wagon by which plaintiff was injured belonged to the defendant Howard O. Firor, and was negligently and carelessly loaded by the agents and servants of the defendant Saxton. Leave to make this amendment having been granted, the motion to dismiss made by defendants Firor and Saxton was denied.

Defendant Saxton's third prayer prayed the court to instruct the jury that there was no evidence legally sufficient to prove that the loading of the wagon on the day alleged in the declaration was done in a negligent manner, and that their verdict must be for him.

Defendant Saxton's first prayer requested that the court instruct the jury that there was no evidence in the case legally sufficient to entitle plaintiff to recover, and that their verdict must be for the defendant Saxton.

Defendant Saxton's fifth prayer requested the court to charge that the immediate cause of plaintiff's injury was due to the negligent driving of the wagon in question by the agents of defendant Firor, and that their verdict must therefore be in favor of defendant Saxton.

Plaintiff's first prayer, which the court gave, requested the court to charge that, if the jury should find from the evidence that plaintiff was standing on the sidewalk at or near the corner of Fayette and St. Paul streets, in Baltimore city, and that he was exercising ordinary care, and should further find that a wagon belonging to and in charge of an agent or servant of defendant Howard O. Firor was driven along the street, near the said corner, and such wagon was loaded with boards or timbers, nailed together, that extended or projected beyond the sides of the wagon, and shall further find the boards or timbers had been so placed or loaded by the agents or servants of defendant Saxton for the purpose of having been hauled or carried for Saxton through the streets of Baltimore, and shall find that in so loading the wagon Saxton's agents and servants did not exercise such care or caution as a reasonably prudent man would ordinarily exercise under like circumstances, and that the agent or servant of defendant Firor in a negligent and careless manner drove the wagon along the street, at or near the corner of Fayette and St. Paul streets, and that plaintiff was struck by the boards or timbers with which the wagon was loaded and was injured, then the verdict must be for plaintiff against both defendants Firor and Saxton. Defendant Saxton excepted to this instruction, first, because there was no evidence legally sufficient to show that the wagon was negligently loaded; and, second, because even if there was evidence legally sufficient to show such fact, the loading was the remote, and not the proximate, cause of the injuries.

Defendant Firor's first, third, and fourth prayers were as follows: "First. The court instructs the jury that plaintiff has produced no legally sufficient evidence under the pleadings to entitle him to recover as against defendant Firor." "Third. The court instructs that under the whole evidence there has been produced no evidence legally sufficient under the pleadings to entitle plaintiff to recover against the defendant Firor. Fourth. The court instructs that there is no evidence legally sufficient to show that the driver of the wagon was at the time plaintiff was injured the servant of the defendant Firor, and hence the verdict must be in his favor." All of which were refused.

Defendant Firor's sixth prayer, which was granted, was as follows: "The court instructs that if the jury find that the position in which plaintiff was standing was so near to the curb of the street, and so near to the southwest intersection of Fayette and St. Paul streets, as to render an accident probable with beams passing along Fayette street and turning down St. Paul street, and that if they shall further find that plaintiff stood in that position with his back toward the curb, and shall further find that the plaintiff in thus taking that position was not exercising the care that an ordinarily prudent person would exercise under like circumstances, then plaintiff is not entitled to recover, and their verdict should be for defendants."

Defendant Firor's seventh prayer was as follows: "The court instructs that if the jury find that plaintiff was standing in the position on the sidewalk at the corner of St. Paul and Fayette streets, in Baltimore city, and in close proximity to the fire alarm box as testified by him, and further find that as the wagon mentioned in the evidence approached the corner plaintiff was warned of the danger of his position in respect to the contents of the wagon alleged to protrude over the pavement or sidewalk, and plainliff was heedless of the warning and remained in such position, and the jury believed that an ordinarily prudent man under like circumstances, in the exercise of ordinary care, would have moved from such position, and if plaintiff had moved he would not have been injured, he could not recover."

Joseph N. Ulman, Frederick T. Dotton, and Wm. C. Smith, for appellants.

Edwin Burgess and D. Eldridge Monroe, for appellee.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, PATTISON, URNER, and STOCKBRIDGE, JJ.

BOYD C.J.

The appellee sued the Pittsburg Valve Foundry Construction Company and the mayor and city council of Baltimore, together with the two appellants (Firor and Saxton) now before us, for injuries alleged to have been sustained by him by being struck by beams or timbers which protruded over a sidewalk in Baltimore, while being carried in a wagon through one of its streets. During the course of the trial, verdicts were rendered in favor of the two corporations, but a verdict was also rendered against the two individual defendants, upon which a judgment was entered. They took separate appeals, which upon motion in this court were consolidated.

The case is a peculiar one, as each of the two appellants seeks to put the responsibility upon the other. As it had been recently repeated by us that, when one of two or more parties against whom a judgment has been entered at law desires to appeal, he should apply to this court for a writ of summons and severance (Oldenburg v. Dorsey, 102 Md. 172, 62 A. 576; P. B. & W. R. Co. v. Stumpo, 112 Md. 571, 77 A. 266), it would perhaps have been better to have pursued that course, but, as the appeals were with our leave consolidated, we will treat them as a joint appeal, although the fact that some of the exceptions were taken by the one or the other of them makes the record somewhat confusing.

The first exception of defendant Firor will first be briefly referred to. When the first witness mentioned in the exception was on the stand, the plaintiff called for the contract between the mayor and city council of Baltimore and the Pittsburg Company, and after examination of it one of the counsel for the plaintiff stated that they were satisfied that the city of Baltimore was not liable, and they...