Lewis v. Baltimore & O.R. Co.

• Decision Date: 10 July 1873
• Citation: 38 Md. 588
• Parties: SAMUEL D. LEWIS v. THE BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: Maryland Court of Appeals

38 Md. 588

SAMUEL D. LEWIS v. THE BALTIMORE AND OHIO RAILROAD COMPANY.

Court of Appeals of Maryland

July 10, 1873

APPEAL from the Circuit Court for Howard County.

This suit was instituted in the Court of Common Pleas by the appellant to recover damages from the appellee, for an injury alleged to have been occasioned by the negligence of its agents. On the suggestion and affidavit of the defendant the case was removed to the Circuit Court for Howard County, for trial. The facts showing how the plaintiff was injured, are sufficiently set out in the opinion of the Court.

The plaintiff at the trial offered in evidence, sections 1, 4, 5, 6, 7, 9, 13, 14, 17, 105 and 117 of Article xxxvi of Baltimore City Code; and the defendant read in evidence section two of the same Article.

Exception.--The plaintiff offered the following prayers:

1. That the attempt of the plaintiff to pass over the platform of the defendant's cars, in the manner and under the circumstances detailed in the evidence, was not an act in violation of the second section of Article 36 of the Baltimore City Code.

2. If the jury find from the evidence, that on or about the 16th day of January, 1871, the plaintiff was injured by the cars of the defendant, while operated by its agents on its road and that said injury resulted directly from the want of ordinary care and prudence on the part of the agents of the defendant, and not from the want of ordinary care and prudence, or from the unlawful act of the said plaintiff directly contributing to the injury, then the plaintiff is entitled to recover.

3. Even if the jury believe that the plaintiff was guilty of a want of ordinary care and prudence in attempting to pass between the cars of the defendant, under the circumstances disclosed in the evidence, and that in doing so he violated an ordinance of the City Council of Baltimore; yet, if the jury further find, that if the agents of the defendant had used in and about the running or moving of the train that injured the plaintiff, ordinary prudence and care in giving reasonable and usual signals before putting the train in motion, and in keeping a reasonable look-out, the injury would not have occurred, then the plaintiff is entitled to recover; provided the jury find the other facts set out in the first prayer of the plaintiff.

4. If under the instructions, the jury should find for the plaintiff, he is entitled to such damages as will fairly compensate him for the time lost during, and reasonable expenses in effecting, his cure; for the physical and mental suffering caused by the injury, and for the permanent reduction of his power to earn money, considering the reasonable probabilities of the life of the plaintiff.

5. If the jury find from the evidence that the agents of the defendant did not conform to the ordinances of the City of Baltimore, prescribing certain regulations to govern the defendant in the use and management of its cars, trains and engines, within the limits of the said city, at the place where the accident occurred, and that the failure to conform to said regulations contributed directly to the accident by which the plaintiff was injured, then the plaintiff is entitled to recover; unless the jury shall find that the plaintiff, by his negligence, or by some unlawful act, directly contributed to his own injury.

6. In considering the question of negligence, it is competent for the jury, in connection with the other facts and circumstances of the case, to infer the absence of fault on the part of the person injured, from the general and known disposition of men to take care of themselves and to keep out of the way of difficulty and danger.

7. If the jury find from the evidence that the plaintiff was guilty of negligence, which contributed to his injury, and also find that the plaintiff's injury was not the ordinary and likely result of such negligence, but was due to some wholly unlooked for and unexpected event, which could not reasonably have been anticipated or expected to be likely to occur, then the plaintiff is not disentitled to recover by reason of such negligence.

8. If the jury believe from the evidence that the plaintiff's act, in crossing between the defendant's cars, was invited or induced by the unlawful act of the defendant or its agents in obstructing or blocking up the street, the plaintiff is not debarred from his recovery by his negligent act so invited or induced, although such negligent act directly contributed to the injury of the plaintiff.

The following prayers were offered by the defendant:

1. That if the jury shall find from the evidence that the injury complained of occurred when the plaintiff was getting upon the platform of a freight-car, (part of a train of the defendant then at the intersection of Camden and Howard streets,) which train was then in the course of being made up, and that such injury would not have occurred if the plaintiff had not attempted to get upon said freight-car, then the plaintiff is not entitled to recover in this case.

2. That if the jury shall find from the evidence that the injury complained of would not have occurred if the plaintiff, in crossing Howard street, had not attempted to get on a freight-car of the defendant, at the intersection of Howard and Camden streets, and that he could have crossed Howard street in safety, by walking less than a square, and passing around the train of which said car formed a part, then he is not entitled to recover in this case.

3. If the jury believe from the evidence, that at the time of the injury complained of, the defendant was engaged in making up a train on Howard street, north and south of Camden street, preparatory to taking the train out of the city, by coupling together a number of cars standing on said Howard street, by attaching an engine to the south end thereof and backing the cars up Howard street, coupling them together as they were brought in contact with each other, and that the cars north and south of Camden street had already been coupled together, thus forming a continuous train across the crossing of Howard street at Camden, and if, at the time the company were thus making up its train, the plaintiff attempted to cross Howard street by climbing over the platform of one of the cars so being made up, and was caught between the bumpers of the car and injured, then the act of the plaintiff was such a want of ordinary care as contributed directly to the injury, and he cannot recover.

The Court, (HAMMOND, J.,) rejected the prayers of the plaintiff and granted those of the defendant; the plaintiff thereupon excepted, and the verdict being against him, he appealed.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, BRENT and ROBINSON, J.

Joseph Packard, Jr., and Richard M. Venable, for the appellant.

The Circuit Court was not warranted in instructing the jury that the act of the plaintiff was contributory negligence.

This Court has on several occasions intimated that Courts under certain circumstances are warranted in declaring acts to be negligent as a matter of law, and has discussed the characteristics of such acts. These characteristics form the tests by which it may be determined when the Courts are to assume the province of declaring an act negligent. They are--

1st. The complexity or simplicity of the act. The Courts will not leave the question of negligence to the jury where the case presents some prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ; when the act in question is not dependent upon surrounding circumstances for its quality, and when that quality can be determined only by considering all the attendant circumstances of the case. Balt. & O. R. R. vs. Fitzpatrick, 35 Md., 32, 46.

The act of the appellant in this case was no more prominent or decisive, and no less dependent on surrounding circumstances for its quality than the acts of the persons injured in the following cases: Shipley's Case, 31 Md., 368; Fitzpatrick's Case, 35 Md., 32; Trainor's Case, 33 Md., 542.

2nd. The act must be proved by uncontroverted testimony. Prayers taking a case from the jury necessarily concede the truth of all the evidence in the cause, and all legitimate inferences therefrom tending to disprove negligence in the plaintiff. Shipley's Case, 31 Md., 368, 370-1.

3rd. The act must be the proximate (and not the remote) cause of the injury. An act is the proximate cause of all effects which are reasonably probable to follow from it. And this test merely means, that an act is the proximate cause of those injuries which an ordinary mind would reasonably judge that the act would lead to. In other words, an incautious act may be a proximate cause--and a cautious act can never be. So the inquiry into proximate and remote causes is merely an inquiry into the prudence of the act. Trainor's Case, 33 Md., 542, 553-4; Sher. & Red. on Neg., secs. 10 and 33.

The prudence of Lewis' act is to be judged in the light of the following considerations:--his trade (brick-mason) made him an expert climber and sure of hand and foot; he had a practical test of the prudence of his course in having seen several (six or seven) adopt it (Shipley's Case, 31 Md., 368;)--he had the judgments of these six or seven as to its prudence; practically he had the judgments of the railroad employés as to its prudence, since they had left the crossing unguarded; he had the right to conclude that the employés of the railroad would signal before moving the train, and that he would have time after the signal and before the moving to extricate himself from any situation of danger in which his act might involve him he had a right to expect that the employés would see that no one...