Baltimore & Ohio Railroad v. Fitzpatrick

Alvey, J., delivered the opinion of the Court. This record presents cross-appeals, but we are only required to pass upon the appeal of the plaintiff below in the event of reversal on the exception of the defendant. The action was brought to recover of the defendant for injuries sustained by the plaintiff, by being caught between two cars of the former, while the latter was attempting to cross Howard street in Baltimore. At the trial below prayers were offered for the Court’s instruction to the jury, on both sides; but of those prayers only the second and third of the plaintiff, and the third and ⁴³ seventh of the defendant, were granted.

The first of the plaintiff, and first, second, fourth, fifth and sixth of the defendant, were rejected; and it was to the refusal of the defendant’s five prayers, and to the granting of the second and third prayers of the plaintiff, that the defendant excepted. On the question of negligence, the main question in the cause, the second prayer of the plaintiff, and the third prayer of the defendant, taken together, would seem to have fully and quite correctly instructed the jury as to the law by which their verdict should be found. To justify a finding for the plaintiff, under the instruction, the jury were required to find the want of ordinary care and prudence on the part of the defendant, in the use and management of its cars, and that such want of ordinary care and prudence directly cawsed the injury complained of; but that the plaintiff could not recover, if, by the exercise of ordinary care and caution on his part, he could have avoided the accident. This instruction was clear and distinct, and ivas in accordance with the well settled principles applicable to cases like the present.

The jury found the conditions required to entitle the plaintiff to a verdict; but whether properly or not, on the evidence before them, is not a question for this Court to decide. That was a question which could only be determined by the Court below, on a motion for a new trial. The third prayer of the plaintiff, which instructed the jury as to the proper elements in reference to which the damages should be assessed, in the event of their finding for the plaintiff, was clearly correct. Indeed, we do not understand that it was at all controverted by the defendant.

The prayer itself is marked as conceded. By the first, second, and fourth prayers of the defendant, which were rejected, the question as to what constituted contributory negligence, or want of ordinary care on the part of the plaintiff, was sought to be made one of law for the Court to decide, rather than one of fact for the jury to determine, under all the facts and circumstances of the case. Each of ⁴⁴ these prayers, upon certain enumerated facts, required the Court to instruct the jury, that, as matter of Jaw, there was want of ordinary care by tire plaintiff, and therefore he was not entitled to recover. In refusing to grant these prayers, or either of them, the Court committed no error.

This Court has too often decided to be required again to repeat, that the question of negligence or the want of ordinary care, in cases like the present, is one of fact for the consideration of the jury. The most that the Court can do, in cases where there is a contrariety of evidence, and the question of care or negligence depends upon the consideration of a variety of circumstances, is to define the degree of care and caution exacted of the parties, and leave to the practical judgment and discretion of the jury, the work of comparing the acts and conduct of the parties concerned with what would be the natural and ordinary course of prudent and discreet men under similar circumstances. To attempt to do more than this, in the great majority of cases that occur, would require of the Court to multiply distinctions, and to indulge refinements, to suit the particular circumstances of each case, to an extent that would tend rather to embarrass than promote the fair and liberal administration of justice. In this case, as in other cases of the like character, the degree of care required of the plaintiff to entitle him to recover, was simply such as should have been reasonably expected from an ordinarily prudent person in his situation; that is to say, reasonable care.

If he exercised such degree of care, though he may have been guilty of some negligence or want of caution, he was still entitled to recover for any injury sustained in consequence of the defendant’s negligence. If the defendant did not exercise ordinary care, and the plaintiff, by the exercise of'such degree of care on his part, could not have avoided the consequence of the