Baltimore & Ohio Rail Road v. Bahrs

Miller, J., delivered the opinion of this Court. This action was brought by the appellee against the appellants to recover damages for an injury alleged to have been caused by the negligent and careless driving of one of their cars along Pratt street, in the city of Baltimore, by a servant or agent of the defendants. The plaintiff was not a passenger nor in the service of the company, and the suit is founded on common law principles. Testimony was taken on both sides showing the circumstances under which the accident occurred, and the extent of the injury sustained by the plaintiff.

After the evidence was closed, no prayers were offered on the part of the plaintiff, but the defendants asked four instructions to the jury, all of which were granted except the first, which the Court refused to grant in .the form prayed, but gave the following instruction in lieu thereof: “ If the jury shall believe from the evidence that the car of the defendants, spoken of ⁶⁴⁹ by the witnesses as causing the accident testified to, was, at the time of the accident, managed with ordinary diligence and care, then the plaintiff is not entitled to recover, and the burden of proof is on the plaintiff to show that the accident was caused by the want of ordinary care and diligence on the part of the defendants.” The defendants excepted to the granting of this instruction, but took no exception to the refusal to grant their first prayer as presented. The only question before us, therefore, is the correctness of this instruction; we are not at liberty to pass upon the rejected prayer if we find no error in the action of the Court in granting this instruction. The appellants’ counsel admits the law of the instruction is correct so far as it goes, and the only complaint made is, that it was calculated to mislead the jury, because it did not go further and instruct them that even if there were want of ordinary