Northern Cent. Ry. Co. v. State, to Use of Geis

• Decision Date: 23 November 1869
• Parties: THE NORTHERN CENTRAL RAILWAY COMPANY v. THE STATE OF MARYLAND, Use of M. O. Geis, Widow, and Others.
• Court: Maryland Court of Appeals

31 Md. 357

THE NORTHERN CENTRAL RAILWAY COMPANY v. THE STATE OF MARYLAND, Use of M. O. Geis, Widow, and Others.

Court of Appeals of Maryland

November 23, 1869

Appeal from the Superior Court of Baltimore City.

This action was brought in the name of the State for the use of the widow and children of Charles Geis, deceased, to recover damages for his death, alleged to have been caused by the negligence of the appellant. The deceased was a German laborer, engaged with others, at the time of the accident, in unloading a car laden with corn, standing upon a siding leading into the warehouse of C. Slagle & Co., on North street, in the City of Baltimore. While so engaged, he was thrown from the car, and received the injury from which he afterwards died. The deceased and the other laborers in the car were employed by Knox & Gill, the purchasers of the corn. The car and the team belonged to the appellant, and at the time of the accident were under the control of the appellant's driver and brakeman.

At the trial below, the plaintiff offered evidence to show that the team was attached to the car, and the car started without any notice to the deceased, and that the injury which he received was attributable to this fact.

The defendant offered evidence to show that notice was given sufficient to put the deceased upon his guard, but that he undertook to assist a drayman, whose dray was standing beside the car, receiving a load from it, to complete his load by throwing on one more bag. And that in consequence of the sudden movement of the car, while he was so engaged, the deceased was thrown out and injured. The injured man was carried to the opposite side of the street, taken charge of by his fellow-laborers, carried home on the top of a wagon loaded with bags of corn, and died after lingering five days.

There was also evidence to show that the car, at the time, was partly extending across the sidewalk in violation of Ord. 34 sec. 5, of the Rev. Ord. of 1858.

The plaintiff offered five prayers, of which the third was granted, the fourth was rejected as offered, but granted with a qualification, and the rest were rejected.

Third prayer of the plaintiff.--In considering the question of negligence, it is compentent 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 deceased, from the general and known disposition of men to take care of themselves, and to keep out of the way of difficulty and danger.

Fourth prayer of the plaintiff.--If the jury believe from the evidence that the car from which Charles Geis was thrown, on the occasion in question, was at the time of the accident standing on the switch leading to the warehouse of C. Slagle & Co., in such a way as to obstruct the free passage along the line of the street between the railroad and the footway as described by the witnesses, then the defendant was acting in violation of the City Ordinance, (No. 34, sec. 5,) and cannot escape from responsibility to the plaintiff except by showing the exercise of the utmost diligence and care, unless the jury believe that the accident could have been avoided by ordinary care and prudence on the part of the deceased.

This prayer was rejected as offered, but granted with this qualification:

But the mere fact of the car being in the place in which it stood will not increase the defendant's liability for the injury complained of, unless the jury shall believe that the accident would not have happened, if the car had been on a part of the track where the ordinance of the city would not have been violated.

The defendant offered four prayers, the first and second of which, as follows, were rejected--the others were granted:

First.--That unless the jury shall find, from the evidence, that the accident complained of, resulted from the want of ordinary care on the part of the defendant in the management of one of its cars, the plaintiff is not entitled to recover; and even if the jury shall so find, the plaintiff is not entitled to recover, unless the jury shall further find from the evidence, that the deceased did not, by his own neglect or want of care, contribute to the accident.

Second.--That if the jury shall find from the evidence, that the accident in question, would have been avoided by the exercise of ordinary care and caution on the part of the deceased, the plaintiff is not entitled to recover.

The court gave, in addition, the following instruction:

That unless the jury shall find, from the evidence, that the accident complained of, resulted from the want of ordinary care on the part of the defendant, in the management of its cars, the plaintiff is not entitled to recover; but if the jury shall find from all the evidence in the cause that the accident by which Geis came to his death was occasioned by the negligence of the servants of the defendant, then they must find their verdict for the plaintiff; unless they shall find that the said Geis, by his own negligence, or want of ordinary care and caution, so far contributed to his misfortune, that but for such want of ordinary care and caution on his part, the said accident would not have happened, nor if the defendant might, by the exercise of care on its part, have avoided the consequences of the neglect or carelessness of the deceased. But to prevent the plaintiff's recovery, the negligence on the part of the deceased must have been concurrent and formed the proximate cause of his death; for if the negligence of the defendant's servants was the proximate, and that of the deceased the remote cause of the injury, then they must find their verdict for the plaintiff.

But if the jury shall find that the negligence which produced the accident was mutual, and that they cannot impute to each party his own proper share in the commission thereof, as above mentioned, then they must find their verdict for the defendant.

As to the treatment of the deceased after the happening of the accident, if the jury shall find that the deceased was immediately taken into the custody of his friends, who removed him to his home, then the legal responsibility of the defendant for his proper treatment ceased, and it is not responsible for what happened thereafter, by reason of any improper treatment, if the jury shall find such to have existed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ALVEY, JJ.

Daniel M. Thomas and Bernard Carter, for the appellant.

There was error in granting the plaintiff's third prayer, because it was calculated to mislead the jury. The language of the prayer was copied from the opinion of the court in N. C. R. R. Co. v. Price, 29 Md. 420. The court did not intend such language to be used as a distinct instruction to the jury, even in a case like Price's, where there was no evidence to show how the deceased happened to be on the railway when the train was passing, and still less in a case like the present, where there was distinct evidence to show actual negligence on the part of the deceased, against which, inferential evidence like that embodied in this instruction, ought not to be allowed to weigh.

There was error in the refusal of the defendant's first prayer.

The plaintiff should have shown affirmatively that the deceased was not guilty of contributive negligence. State, use of Coughlan, v. B. & O. R. R. Co. 24 Md. 105; B. & O. R. R. Co. v. Miller, 29 Md. 252.

The apparent modification of this principle in Price's case was based upon a peculiar state of facts, in no way applicable to the present case.

The defendant's second prayer was unobjectionable, and should have been granted in the form...