North Baltimore Pass. Ry. Co. v. Kaskell

• Decision Date: 23 January 1894
• Parties: NORTH BALTIMORE PASS. RY. CO. v. KASKELL.
• Court: Maryland Court of Appeals

28 A. 410

78 Md. 517

NORTH BALTIMORE PASS. RY. CO. v. KASKELL.

Court of Appeals of Maryland

January 23, 1894

Appeal from Baltimore court of common pleas.

Action by Charles Kaskell against the North Baltimore Passenger Railway Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before ROBINSON, C.J., and BRYAN, FOWLER, BRISCOE, BOYD PAGE, and ROBERTS, JJ.

R. D Morrison, H. Munnikhuysen, and N. P. Bond, for appellant.

Isidor Schoenberg and Charles W. Field, for appellee.

ROBERTS J.

The plaintiff, while a passenger on one of the defendant's cars, was injured in the hand, in consequence of the car colliding with one of the freight cars of the Western Maryland Railroad Company. It appears from the testimony that on the night of September 9, 1891, the plaintiff took passage on one of the defendant's Centre street line of cars in the city of Baltimore, and while a passenger thereon the car ran off the track at the east end of Centre street bridge crossing Jones' falls, and continued off the track without effort on the part of the driver to replace it, until it had run down Centre street to Front street, then into High street, and down High to Hilton street, a distance of more than two squares. On the night of the injury, just at the street corner where the car makes a sharp turn to the right into Front street, there was a Western Maryland box freight car standing. The driver of the street car allowed the same to be drawn over the cobble stones with such rapidity that the rear of the car was thrown around so far to the left that it was brought into collision with the freight car, thus lacerating and mashing the right hand of the plaintiff, with which, at the moment of accident, he was holding on to one of the uprights or sash between the windows of the cars. When he first took hold of the upright or sash is one of the questions of importance which this appeal presents, and about which the testimony is conflicting. It appears from the testimony offered on the part of the plaintiff that the car was densely crowded. Passengers were standing in the aisle, and filling the rear platform. The car was jolting heavily, and passengers with difficulty retained their seats in the car. The plaintiff, in his testimony, says "that he just took hold of the window when the car got off the track, because otherwise he could not hold himself. That was the first time he had his hand on the window. That he did not have his hand hold of the window before that." The defendant offered testimony tending to show that the plaintiff, before and at the time the car ran off the track, had been sitting with his elbow resting on the sill of the window of the car, and his hand clasped around the post of the window, the back of his hand being outside the car.

The questions which have been discussed before us arise on the exception to the granting of the plaintiff's first prayer, and to the rejection of the defendant's first and fourth prayers. The plaintiff's first prayer presents no new proposition of law, and has on more than one occasion had the approval of this court. The prayer is as follows "If the jury believe that the plaintiff was a passenger on one of the defendant's cars, and whilst being carried therein was injured by a collision of said car with a railroad car on another track, close to defendant's track, then the presumption is that the injury resulted from the negligence of the defendant, and the plaintiff is entitled to recover, unless the defendant shows that said injury did not result from its negligence, or that the accident could have been avoided by the exercise of ordinary care on the part of the plaintiff." The criticism which has been indulged with respect to this prayer is rather hypercritical than sound or practical. It is contended that the prayer (except for unimportant verbal alterations) is the same as that passed upon and condemned by this court in Railroad Co. v. Andrews, 39 Md. 353. But this is an...