Appeal
from Baltimore City Court; Alfred S. Niles, Judge.
Action
by Mamie Elizabeth Carneal, an infant, by Alfred A. Carneal
her next friend, against the United Railways & Electric
Company of Baltimore. From a judgment for plaintiff
defendant appeals. Affirmed.
Worthington
J., dissenting.
Plaintiff offered the following prayers:
"(1)
If the jury find from the evidence that the plaintiff was
injured by being knocked down and run over by the car of
the defendant, and that such injury might have been avoided
by the exercise of ordinary care and prudence on the part
of the defendant, or its servants or agents, then their
verdict will be for the plaintiff, unless they shall find
that the injury complained of resulted from the want of
such care and prudence on the part of the plaintiff as
ought, under all the circumstances, to have been reasonably
expected from one of her age and intelligence, or from the
want of ordinary care and prudence on the part of her
parents, directly contributing to the accident.
"(2)
The plaintiff will not be prevented from recovering in
consequence of any negligence on the part of the
child's mother if the jury shall find that the motorman
of the car in question, by the exercise of ordinary care
and caution, might have seen the child and stopped the car
in time to have avoided the accident.
"(3)
In considering whether there was any negligence on the part
of the mother, the jury should take into consideration her
condition and state in life, her ability or inability to
provide a nurse for her child, the household duties she had
to perform, and they may also consider the natural
affection of a mother for her child, and her desire to
shield it from danger.
"(4)
If the jury find for the plaintiff, in estimating the
damages, they are to consider the health and condition of
the plaintiff before the injury complained of, as compared
with her present condition, in consequence of said injury,
and whether the said injury is in its nature permanent, and
how far it is calculated to disable the plaintiff from
engaging in those industrial pursuits and employments for
which, in the absence of such injury, she would be
qualified, and also the physical and mental suffering to
which she was subjected by reason of the said injury, and
to allow such damages as in the opinion of the jury will be
a fair and just compensation for the injury which the
plaintiff has sustained."
Defendant
offered the following prayers:
"(1)
The defendant prays the court to instruct the jury that there
is no evidence in this case legally sufficient to entitle the
plaintiff to recover, and their verdict must be for the
defendant.
"(2)
The defendant prays the court to instruct the jury that the
undisputed evidence in this case shows that the negligence of
the plaintiff contributed to the injury of which she
complains, and their verdict must be for the defendant.
"(3)
If the jury shall find from the evidence in this case that
the plaintiff stepped in the way of the car of the defendant
when it could not be arrested in its course and under
circumstances where with ordinary care on the part of the
motorman the car could not be brought to a pause early enough
to save her from injury, the defendant is not liable.
"(4)
The defendant prays the court to instruct the jury that, if
they believe from the evidence that the motorman of the
defendant company's car had no reason to believe that the
plaintiff intended to cross in front of his car until the car
was so close to the plaintiff that the accident could not
have been avoided by the motorman by the exercise of
the ordinary degree of care, then the defendant is not
responsible for the accident, and the verdict must be for the
defendant.
"(5)
The defendant prays the court to instruct the jury that, if
they find from the evidence that the motorman of the
defendant company's car at or about the time of the
injury to the plaintiff was acting with usual care and
prudence, their verdict must be for the defendant.
"(6)
The burden of proof is upon the plaintiff to show that the
injury complained of was caused by the want of ordinary care
on the part of the defendant or its employés, and, unless the
jury shall be satisfied by the preponderance of testimony
that the injury complained of was directly caused solely by
the want of ordinary care on the part of the defendant or its
employés, the plaintiff is not entitled to recover, and the
verdict of the jury must be for the defendant.
"(7)
The defendant prays the court to instruct the jury that there
can be no recovery in this action unless the jury find from
the evidence that the plaintiff has affirmatively shown by a
fair preponderance of testimony that the accident was caused
through the negligence of the defendant, and the jury are
instructed in determining whether or not the defendant was
guilty of negligence that the law makes no unreasonable
demand, and that it will not consider the defendant as guilty
of culpable negligence in failing to take precautions which
in the opinion of the jury no man of ordinary prudence would
have taken under the circumstances.
"(8)
The defendant prays the court to instruct the jury that the
infancy of the plaintiff does not change the degree of care
and diligence to be used by the defendant in the manipulation
of its cars.
"(9)
The defendant prays the court to instruct the jury that if
they find from the evidence that the parents or person in
charge of the plaintiff at or about the time of the happening
of the accident were negligent in their care of the said
plaintiff, and that the negligence directly contributed to
produce the accident mentioned in the evidence, then there
can be no recovery in this case, and the verdict of the jury
must be for the defendant."
The
court refused plaintiff's third prayer, and modified
plaintiff's fourth prayer by adding thereto the
following: "But the jury are not to award any damages
for any injuries, except those proved by the evidence with a
reasonable certainty, and the testimony of Dr. Charles L.
Rumsey as to the effect of the injuries to the pelvis
testified to by him upon child-bearing by the plaintiff is
too vague to be considered by the jury"--and granted the
said prayer as thus modified.
The
court refused defendant's first, second, eighth, and
ninth prayers, and gave the third, fourth, fifth, and sixth.
Argued
before BOYD, C.J., and PEARCE, SCHMUCKER, BURKE, WORTHINGTON,
THOMAS, and HENRY, JJ.
HENRY
J.
This is
an appeal taken by the defendant below from a judgment for
$7,500 rendered against it in the Baltimore city court in an
action by the appellee to recover damages for personal
injuries sustained in an accident which occurred March 14,
1907. at the corner of St. Paul and Twenty-Third streets, in
the city of Baltimore, and which it is charged in the
declaration was the result of the negligence of the
defendant, without any negligence on the part of the
plaintiff directly contributing thereto. In the court below
three exceptions were taken by the appellant--the first to
the admissibility of certain testimony, and the second and
third to the action of the court upon the prayers offered by
the litigant parties. (The reporter will please set out these
prayers in reporting the case.)
The
first prayer of the defendant, offered at the close of all
the testimony, being in the nature of a demurrer to the
evidence, brings up for review the testimony in the case. The
plaintiff was a female infant, not quite three years of age,
who had slipped away from her mother's home at 2234 North
Calvert street and had strayed from them to the corner of St.
Paul and Twenty-Third street.
The
only eyewitness of the accident produced on the part of the
plaintiff was William A. Lewis, a colored wagon driver, whose
testimony it is important to consider. In his examination in
chief this witness states: "On this morning I had on a
load of furniture going up the right-hand side of St. Paul
street, about 20 feet south of Twenty-Third street, when I
saw this car coming, and I saw this little child start from
that corner, which, I guess, is the northeast corner to the
southwest corner, and I saw this car coming at a good speed
and I said, 'That child is gone,' and almost in the
time I could say that the car had struck her, and I thought
it had cut her in half; and I got so nervous I didn't
know what I was doing. I saw a lady standing on the corner
trying to wave the car down in the first place, but the car
didn't stop, and this man didn't seem to see any one,
as he was...
