Baltimore City Passenger Railway Co. v. McDonnell ex rel. McDonnell

GriiASON, J., delivered the opinion of the Court. At the trial of this case in the Court below, three exceptions were taken, the first to the admission in evidence of the ordinance of the Mayor and City Council of Baltimore, regulating the speed of the appellant’s cars on the route on which the plaintiff was injured ; the second to the refusal of the Court to permit to be offered to the jury, the declaration of the father of the plaintiff, that the in ⁵⁵⁰ jury to the plaintiff “was the result of an accident, for which the driver of the car was not to blame,-” and the third to the granting of the three first prayers of the plaintiff, and the rejection of the first, third, fourth, fifth, sixth and seventh prayers of the defendant. 1st Exception. — The admissibility of the ordinance of the Mayor and City Council was objected to, on the alleged ground, that no evidence had been offered, that the car was running at a speed exceeding six miles an hour at the time the accident happened. One witness had testified that she did not know at what speed the car was running, but that it was running faster than ordinarily, and that a man would have to run very fast to keep up with it. Another testified that she did not see the car coming, but heard it, and, from the sound of the bells, she thought it was coming at full speed.

From this proof, it was competent for the jury to determine whether or not the car was running at a rate of speed exceeding six miles an hour, and it sufficiently laid the foundation for the introduction in evidence of the City ordinance. But even if the foundation was not thus sufficiently laid, and the Court erred in permitting the ordinance to be offered in evidence at that stage of the trial, the defendant was not injured by the ruling of the Court, because Mules, the driver of the car, after-wards swore that, he had to make four miles in thirty-eight minutes, without making allowance for stoppages; so that it appeared that the average rate of speed of the car was more than six miles an hour, and the ordinance would have clearly been admissible after such evidence had gone to the jury. 2nd Exception. — McDonnell, whose declaration was not permitted to go to the jury, was not preseht when the accident occurred, saw nothing of it, and had no knowledge of the particulars of the accident, further than information derived from others, and any declarations he may have made, must of necessity have been based exclu ⁵⁵¹ sively upon information derived from others, aud were not admissible evidence to affect the interest of, or bind, the plaintiff. The declaration offered, was made by a person having no legal interest in the suit before the suit was commenced, and without any knowledge of the transaction, other than what was derived from other persons. Such a declaration stands upon the same footing with declarations made by a person, to whom letters of administration are afterwards granted, which are not admissible in evidence against him as administrator.

Mangum vs. Webster & Baynes, 7 Gill, 81 ; Dent’s Adm’x vs. Dent, 3 Gill, 482 . 3rd Exception. — The questions of law involved in the prayers of the plaintiff, which were granted, and those of the defendant, which were rejected, have frequently been before this Court for adjudication. Whatever may have'.' been the decisions elsewhere, in this State it is now well j| settled law, that if an injury results directly from the { want of ordinary care and prudence, on the part of the } defendant or its agents, and not from the want of such ]| care and prudence on the part of the plaintiff as ought, j¡ under all the circumstances, to have been expected from one of his age and intelligence, or from want of