Wash. Ry. & Elec. Co. v. Anderson

• Decision Date: 07 February 1935
• Docket Number: No. 14.,14.
• Citation: 177 A. 282
• Parties: WASHINGTON RY. & ELECTRIC CO. et al. v. ANDERSON.
• Court: Maryland Court of Appeals

177 A. 282

WASHINGTON RY. & ELECTRIC CO. et al.

v. ANDERSON.

No. 14.

Court of Appeals of Maryland.

Feb. 7, 1935.

Appeal from Circuit Court, Prince George's County; Joseph C. Mattingly and Win. Meverell Loker, Judges.

Action by May Anderson against the Washington Railway & Electric Company and another.

Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before BOND, C. J., and URNER, OFPUTT, PARKE, SLOAN, SHEHAN, and JOHNSON, JJ.

S. Russell Bowen, of Washington, D. C. (M. Hampton Magruder, of Upper Marlboro, and G. Thomas Dunlop and Bowen & Kelly, all of Washington, D. C., on the brief), for appellants.

A. R. Hassail and J. Wilson Ryon, both of Hyattsville, on the brief, for appellee.

JOHNSON, Judge.

This is an appeal from a final judgment entered by the circuit court for Prince George's county, Md., upon a verdict of a jury awarding damages to May Anderson, the appellee, against Washington Railway & Electric Company, a corporation, and Capital Transit Company, a corporation, appellants, for personal injuries.

The declaration charges that on July 26, 1933, the plaintiff was a passenger upon a car of Washington Railway & Electric Company, the liabilities of which, under a merger between both defendants, had been assumed by the Capital Transit Company, and that she paid the usual and customary charge for her transportation; that she boarded said car at Thirteenth and G Streets Northwest, Washington, D. C, for the purpose of being transported to the District Line and thence into Maryland, but by the negligence and carelessness of Washington Railway & Electric Company, its agents and servants, and without any fault or negligence on her part, the car in which she was riding was given a sudden and unusual jerk and jolt, and she was violently thrown against said car, her arm was twisted under her, one of her fingers was knocked out of joint, and she was otherwise cut and bruised and remained in such condition for a long time, and that her injuries were permanent.

The rulings on the one prayer offered by the plaintiff and the defendants' first prayer constitute the only exception in the record, and these prayers were as follows:

"Plaintiff's Prayer No. L

"The court instructs the jury that if they find a verdict for the plaintiff, then in estimating damages they are to consider the health and condition of the plaintiff before the injuries complained of as compared with her present condition in consequence of such injuries, and whether the same are in their nature permanent, and how far they are calculated to disable the plaintiff from engaging in those pursuits for which, in the absence of such injuries, she would have been qualified; and also the physical and mental suffering to which she has been subjected by reason of such injuries, and the jury are to allow such damages as in their opinion will be a fair and just compensation for the injuries suffered."

"Defendants' Prayer No. 1.

"The jurors are instructed that upon the pleadings and evidence in this case the plaintiff is not entitled to recover, because there is no evidence legally sufficient to show that the accident complained of in the declaration resulted from any want of care on the part of the defendants, or their employees."

The defendants also offered four other prayers numbered 2, 3, 4, and 5, Nos. 2 and 3 of which were granted, 4 and 5 having been conceded. A discussion of these granted and conceded prayers is unnecessary other than to observe that No. 2 was a burden of proof prayer, and No. 3 submitted the question of contributory negligence on the part of the plaintiff, while Nos. 4 and 5 in slightly varying phraseology instructed the jury that the defendants were not liable for the injuries sustained by the plaintiff, provided the jury found that the sudden stop of the car on which the plaintiff was riding was necessitated in order to avoid hitting a boy who, while said car was running, suddenly appeared on the tracks in front of it. Each of these four prayers concluded with an instruction in favor of the defendants, provided the jury found from the evidence the facts recited therein. As to the defendants' rejected prayer, while under section 11 of article 5 of the Code, it cannot be treated as a good variance prayer, similar instructions under recent decisions of this court have been treated as demurrers to the evidence. Heath v. Michael, 145 Md. 277, 125 A. 594; Baltimore v. Terio, 147 Md. 331, 128 A. 353; Caltrider v. Weant, 147 Md. 344, 128 A. 72. Treating the prayer for this purpose, the evidence offered by the plaintiff must be examined and applied to the law frequently stated by this court; the true test being that if the plaintiff's evidence is such that under it a rational mind could find for the plaintiff, the prayer must be rejected. Moyer v. Justis, 112 Md. 220, 76 A. 496; Parker v. Power, 127 Md. 598, 96 A. 800, Ann. Cas. 1918C, 604; Erdman v. Trustees of Eutaw Church, 129 Md. 595, 99 A. 793. The court passes not upon the weight of the evidence, but its legal sufficiency. Kurrle v. Baltimore, 113 Md. 63, 77 A. 373. Also, the truth of the facts adduced by the plaintiff must be assumed. Chapman v. Nash, 121 Md. 608, 89 A. 117. The plaintiff's evidence shows that at the time of her injuries she entered a car of the defendant at G and Thirteenth Streets Northwest, in Washington, D. C.; that the entrance was at the side of the car, about the middle of its length, and after having deposited her...