State v. Baltimore & O.R. Co.

Decision Date14 June 1888
Citation14 A. 685,69 Md. 339
PartiesSTATE, TO USE OF HARVEY, v. BALTIMORE & O. R. CO.
CourtMaryland Court of Appeals

Appeal from circuit court, Baltimore county.

Action by Edward Harvey, in the name of the state of Maryland for his use, against the Baltimore & Ohio Railroad Company, for negligence in causing the death of his wife. Judgment for defendant. Plaintiff appeals.

Argued before ALVEY, C.J., and MILLER, ROBINSON, BRYAN, MCSHERRY and STONE, JJ.

Albert Ritchie, Edward I. Clark, and D. G McIntosh, for appellant.

John K. Cowen, W. Irvine Cross, and John I. Yellott, for appellee.

STONE J.

This is an action against the Baltimore & Ohio Railroad Company for negligence in causing the death of the wife of the equitable plaintiff. After all the testimony had been given, the court instructed the jury that the plaintiff was not entitled to recover, because the evidence of the plaintiff showed that the deceased directly contributed to the accident that caused her death. The court refused a modification of this prayer offered by the plaintiff, and also, as the exception states, refused to consider, while acting on said prayer, any evidence favorable to plaintiff elicited through defendant's witnesses. In this we think the court below erred. At the close of the plaintiff's evidence, if the defendant thinks that the evidence of the plaintiff is not legally sufficient to support the action, he has the right to ask and have the ruling of the court upon it. In such case there is nothing before the court except the plaintiff's testimony. But, if the whole evidence both of plaintiff and defendant is in before such instruction is asked for, the whole evidence must be considered by the court, and not that of the plaintiff only. The reason of this is obvious. The evidence offered by the defendant may and often does supply a defect in the proof of the plaintiff. When, therefore, an instruction is asked that takes the case away from the jury, after the whole evidence is before the court, before such instruction is either granted or refused the whole evidence must be considered by the court, and the ruling based upon that, and not confined to the evidence of plaintiff.

But while the court below were in error in granting the prayer confining, as it did, its consideration to plaintiff's proof only, such error will not authorize a reversal of the judgment if it appears that, upon the whole proof, the plaintiff was not entitled to a verdict. Before, then, we can determine whether this case shall be sent back for a new trial, we must examine the proof, and see whether there is enough in it to authorize its submission to a jury. Before we can do this, we must take all the evidence favorable to the plaintiff, and assume its absolute verity. When the facts are undisputed, or where but one reasonable inference can be drawn from them, the question is one of law for the court; but where the facts are left by the evidence in dispute, or fair minds might draw different conclusions from them, the case should go to the jury. 2 Thomp. Neg. 1179. There is no other question presented to us by the exception but the question of whether this case should be left to the jury or not; and, to determine that, we must be governed by the aforegoing rule, or, as it is said in Fitzpatrick's Case, 35 Md. 32, there must be some prominent and decisive act, in regard to the character of which there is no room left for ordinary minds to differ, before the court will hold it to be a question of law for the court, and withhold the case from the jury. Mrs. Harvey, the wife of the equitable plaintiff, was killed by an engine of the defendant while she was crossing Ohio avenue, in Baltimore city. She attempted to cross that avenue in full view of an engine moving towards her, and stumbled and fell upon the track, and the engine ran over her while she was down. We have said in Mali's Case, 66 Md. 53, 5 A. 87, that a person who attempts to cross a railroad track in view of an engine moving towards him, and not more than 12 feet from him, was guilty of contributory negligence as a matter of law. While that was the distance from the engine that the plaintiff in that case attempted to pass, and therefore was applicable to that case, it is evident that no inflexible rule can be laid...

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