Maryland Cent. R. Co. v. Neubeur

• Decision Date: 19 June 1884
• Parties: THE MARYLAND CENTRAL RAILROAD COMPANY v. CONRAD NEUBEUR.
• Court: Maryland Court of Appeals

62 Md. 391

THE MARYLAND CENTRAL RAILROAD COMPANY v. CONRAD NEUBEUR.

Court of Appeals of Maryland

June 19, 1884

APPEAL from the Circuit Court for Baltimore County.

The case is stated in the opinion of the Court.

Exception.--At the trial the plaintiff offered the six prayers following:

1. That if the jury believe fron the evidence that the defendant did not use such diligence and care as prudent and discreet persons would have used and exercised in running its train at the time and place, and under the circumstances mentioned in the evidence, and that the said plaintiff was thereby injured in the manner testified to, then the plaintiff is entitled to recover, unless the jury further find that the plaintiff directly contributed by his own want of care and prudence, to such accident.

2. That although the jury believe and find from the evidence that plaintiff was guilty of the want of due care and prudence in attempting to cross defendant's tracks, and that he got incautiously upon the same, at the time and place mentioned in the evidence, yet their verdict must still be for the plaintiff if they find he was injured by defendant's train, unless they further find that the defendant could not by the exercise of care and diligence on its part, have avoided such accident.

3. That the jury, in considering the question of negligence, may, in connection with all the facts and circumstances of the case infer the absence of fault on the part of the plaintiff, from the known disposition of persons to avoid injuries to themselves.

4. That in estimating the damages, the jury may allow such a sum of money, which, in their judgment from all the facts and circumstances of the case, will compensate the plaintiff for his pain of body and mind, and the cost of medical attendance.

5. That if the jury believe that plaintiff frequently crossed defendant's track on Lake avenue, a county road, before the time of the alleged accident, at different hours of the day, and had always previous to the time of the accident observed a flagman stationed at that point, and that said flagman was so stationed by the defendant for the purpose of signalling passers by and warning them of the approach of defendant's trains, and that on the occasion of the accident no signal was displayed, and the plaintiff heard no whistle or bell, he had a right to suppose that in the absence of any signal or flagman, there was no train at that time approaching. And if the jury shall believe that if such flagman had been stationed at said crossing at the time, and the signal given, the accident would have been avoided, and that the accident was the direct result of such absence, then the plaintiff is entitled to recover.

6. That if the jury shall find that Lake avenue was a travelled road and that it was crossed by dofendant's tracks, and that defendant did not, on the morning of 21st February, 1883, at the time of the alleged accident, ring a bell placed on the locomotive, at the distance of at least one hundred rods from said avenue, as the train approached said avenue, and keep said bell ringing until it had crossed said avenue; or sound its steam whistle, at least one hundred rods from said road, and sound the said whistle at intervals until it had crossed said road, then the defendant was guilty of negligence, under the term of its charter, and the jury have the right to consider the same if they shall further believe, that if the whistle had been so sounded, or bell so rung, the accident might have been avoided.

And the defendant offered the seven following prayers:

1. That there is no sufficient evidence in this cause, of negligence on the part of the defendant or defendant's agents, as would entitle the plaintiff to recover.

2. That if the jury find from the evidence that the accident complained of, was caused by the want of ordinary care on the part of the defendant in the running of its cars; and also find from the evidence that the want of ordinary care and prudence on the part of the plaintiff directly contributed thereto, the plaintiff is not entitled to recover.

3. That the plaintiff is not entitled to recover in this case, because if Conrad Neubeur was injured by the cars of the defendant, the negligence of said Neubeur directly contributed thereto.

4. If the jury find from the evidence that the want of ordinary care and prudence on the part of the plaintiff directly contributed to the accident complained of, the plaintiff is not entitled to recover.

5. If the jury believe, from the evidence, that the defendant used ordinary care and diligence, to avert the accident, and that the accident was not the result of the want of ordinary care or diligence on the part of the defendant, then the plaintiff is not entitled to recover.

6. That to entitle the plaintiff to recover in this case, the jury must find from the evidence that the accident complained of, was caused by the want of ordinary care on the part of the defendant in the running and management of its cars; and they must also find from the evidence that the want of ordinary care and prudence on the part of the plaintiff did not directly contribute thereto.

7. That the defendant is not required by law to station a flagman at the crossing where the accident occurred, and that the jury cannot infer negligence on the part of the defendant if they find that no flagman was stationed at said crossing at the time of the accident, although they may find that a flagman was stationed at said crossing prior to the accident, after the arrival of the seven o'clock train from Baltimore in the morning, and remained there all day, until the passing down of the last train of the defendant in the evening.

The Court (FOWLER, J.,) granted the first, second, fourth, fifth, sixth and seventh prayers of the plaintiff, his third prayer being conceded; and rejected all the prayers of the defendant, except the fifth, which was conceded.

The defendant excepted. The jury gave a verdict for the plaintiff for $500, and judgment was entered thereon. The defendant appealed.

The cause was argued before ALVEY, C.J., ROBINSON, IRVING, RITCHIE, and BRYAN, J.

R. R. Boarman, for the appellant.

Winfield J. Taylor, and D. G. McIntosh, for the appellee.

ALVEY C.J., delivered the opinion of the Court.

This is an action brought to recover for injuries received by the plaintiff in consequence of the alleged negligence of the defendant. The injuries resulted from a collision with a locomotive engine of the defendant, at a crossing by the railroad of a public country road, while the plaintiff was in the act of crossing the railroad track, in a covered wagon, drawn by one horse. And the verdict and judgment being for the plaintiff, the defendant has appealed.

At the trial it was sought to take the case from the jury, by a prayer for instruction, that there was no sufficient evidence to be considered by them of negligence of the defendant to entitle the plaintiff to recover; and further, assuming that there was such negligence on the part of the defendant, that the evidence showed such contributory negligence on the part of the plaintiff as disentitled him to recover.

But without going into any detailed statement of the evidence, this Court is of opinion that the Court below was entirely right in refusing to withdraw the case from the jury, upon the theory that there was no evidence of negligence by the defendant, or by instructing them as requested by the defendant, that the evidence showed such contributory negligence on the part of the plaintiff, that, assuming all the evidence in his favor to be true, he had shown no ground upon which he could recover. On the contrary, if the testimony of the plaintiff and his daughter, as set out in the bill of exception, be accepted as substantially correct, as to the caution exercised by the plaintiff in approaching the crossing, and that he did not see, and could not, by the exercise of reasonable care and caution, have seen the approach of the train, and that there were in fact no signals given of its approach as required, such as the blowing the whistle, or the ringing the bell, and that it was by reason of such omission that the accident occurred, then, it is clear, there was such negligence on the part of the defendant as to render it liable for the consequences of the collision. But, on the other hand, if the evidence given on the part of the defendant be true, it is equally clear that the plaintiff, by his own want of caution, did contribute to the production of the injury complained of, and, consequently, he could have no right to recover. It was a case of conflicting evidence as to the main facts involved, and was therefore purely a question for the jury, as to the comparative credit and weight of evidence, and the Court could not do otherwise than submit it to the jury for their determination. There was therefore no error in refusing to...