Fisher v. Baltimore Transit Co.

• Decision Date: 28 February 1945
• Docket Number: 10.
• Citation: 41 A.2d 297,184 Md. 399
• Parties: FISHER v. BALTIMORE TRANSIT CO.
• Court: Maryland Court of Appeals

41 A.2d 297

184 Md. 399

FISHER v. BALTIMORE TRANSIT CO.

No. 10.

Court of Appeals of Maryland

February 28, 1945

Appeal from Superior Court of Baltimore City; Emory H. Niles, Judge.

Action by Herman H. Fisher against the Baltimore Transit Company for property damage arising out of a collision between a truck and a street car. Judgment for defendant, and plaintiff appeals.

Judgment affirmed.

William O. Tydings, of Baltimore (Wylie L. Ritchey of Baltimore, on the brief), for appellant.

Philip S. Ball, of Baltimore (John M. Butler, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN HENDERSON, and MARKELL, JJ.

HENDERSON Judge.

This is an appeal from a judgment rendered in favor of the defendant in an action for property damage arising out of a collision between a truck and a street car. The case was tried before the Court and a jury, and the only question raised in the record is by an exception to the Court's charge.

At the conclusion of the defendant's case the trial court delivered an oral charge to the jury which covered in considerable detail the issues of negligence, contributory negligence, and the measure of damages. There then followed a conference at the bench between court and counsel, out of the hearing of the jury, and the court amplified its charge as to the burden of proof, both as to negligence and as to contributory negligence. A further conference was had at the bench between court and counsel, and thereupon the court made an additional charge to the jury, as follows:

'Gentlemen I will add one thing to what I have said and I do not think that it is in conflict with anything I have said before, and that is, if your minds are in even doubt on the whole evidence as to who should prevail then your verdict must be for the defendant.'

Counsel for the appellant [plaintiff below] duly excepted to this last charge, stating: 'I object to it primarily, by virtue of the fact that I believe that the jury will be prejudiced or will tend to be prejudiced by more than one charge based upon contributory negligence in the case.'

It should be noted that the exception is not to the soundness of the added charge. Actually, the portion of the charge excepted to does not instruct upon contributory negligence, but merely states the familiar principle that the burden of proof upon the whole case does not shift, but is still upon the party holding the affirmative after all the evidence is in. See Deeds, Stephen Digest of Evidence (Md. Ed.) p. 475; Meyer Motor Car Co. v. First National Bank, 154 Md. 77, 81, 140 A. 34; and Crowther v. Hirschmann, 174 Md. 100, 109, 197 A. 868. This point was not covered in the previous instructions, and taking the charge as a whole, there is not the slightest suggestion of overemphasis as to one side or the other.

The appellant relies upon the cases of City & Suburban Ry. v. Clark, 128 Md. 281, 97 A. 996, and Pettigrew v. Barnum, 11 Md. 434, 69 Am.Dec. 212. In both these cases this court held that it was not error to refuse a prayer where it merely duplicates a prayer that is granted, because the repetition may mislead the jury. The cases do not hold that mere repetition constitutes reversible error. But in any event they are clearly distinguishable, because in the case at bar the additional charge was not a mere duplication.

The appellant also cites the recent cases of Feinglos v. Weiner, 181 Md. 38, 28 A.2d 577, and Brotman v. McNamara, 181 Md. 224, 29 A.2d 264. These cases hold that...