Baltimore & Ohio Railroad v. Shipley ex rel. Shipley

Miller, J., delivered the opinion of the Court. This is an action to recover damages for an injury to the plaintiff alleged to have been caused by the negligence of the defendants in the management of their engine and cars. No exception was taken to the granting of the plaintiff’s first prayer, and the defendants’ first and third were conceded. In most cases of this kind some general instructions like these are the only guides practically useful or necessary to be given by'the Court, the rule being that negligence is a question for the jury to decide, upon all the facts and circumstances of each case.

But while this is the general rule, cases may and do sometimes occur, where the Court is required to declare some glaring act of carelessness on the plaintiff’s part to be, in law, such contributing negligence as will prevent a recovery, or, on the other hand, where the proof of negligence on the part of the defendant is so slight and inconclusive in its nature as to demand from the Court an instruction as to its legal insufficiency to prove negligence, in order to prevent the j ury from indulging in wild speculation or irrational conjecture. The defendants have supposed this to be such a case, and accordingly by their second and sixth prayers. sought to have the jury instructed that upon finding the facts therein stated, there was such negligence on the part of the plaintiff directly contributing to the injury, as to prevent a recovery; in other words, that the act of the plaintiff in attempting to cross the street under the circumstances stated in each of the prayers, amounted in law to contributing negligence. These prayers asserting that certain facts amount to negligence, and upon finding them the plaintiff cannot recover, and the verdict of the jury must be for the defendants, necessarily concede the truth of all the other evidence in the cause, and all legitimaté inferences therefrom tending to disprove negligence, and if, independent of the hypotheses of fact stated in the ³⁷¹ prayers, there is proof from which the jury might fairly infer absence of negligence in the plaintiff, there was clearly no error in rejecting them. A slight examination of the prominent facts disclosed by the testimony will demonstrate the correctness of their rejection.

The plaintiff, a lad about fourteen years of age at the time, gives á very clear account how the accident occurred. IBs statement in substance is, that having been at work all day in his employment of driving an express •wagon, he left the Camden station about dark to walk to his home on West Baltimore street, near Pine; that he hurried along, wanting to get his supper; and as ho came from Camden to Eutaw he intended to cross the latter street there, and walk up on its west side, but found it blocked up with cars reaching across Camden street; that he then went up Eutaw, on its east side, as far as Dover street, where he saw an opening of some ten feet or more between the cars south and north of that street, which he attempted to pass through in order to cross Eutaw street, but when he got into the gap the cars moved up, closing the space rapidly; that he immediately jumped back, extricated his body with difficulty, and his arm was caught between the cars, crushed and severely injured ; that when he thus attempted to pass he did not see any motion in the cars, heard no signal, no bell, received no warning, but saw a lady pass through the opening in safety before him. From the testimony of other witnesses, on both sides, it appears five or six cars had been standing on the track in Eutaw street during a greater part of the afternoon, of which four or five were between Camden and Dover, and one or two above the latter street, with an interval between them at that place of more than sixteen feet left to allow the free transit of passengers and vehicles along Dover and across Eutaw street; that between seven and eight o’clock an engine with a train of thirteen or fourteen cars attached was ³⁷² backed from Conway slowly up Eutaw stréet, to take up these cars'thus standing above Camden and Dover streets, and, the accident occurred while this operation was going on. Now the prayers we are considering assume it was negligence in the plaintiff not to have noticed the motion of this slowly backing train, and the purpose of that motion, either when he reached Eutaw street, or while he. was passing up on its east side, though the motion was quite slow, and it was then dark enough for the conductor of the train to use his lantern, and that when he reached Dover street, and saw this wide open space at a public crossing between the cars north and south of that position, obviously left, open for the express purpose of a free passage across Eutaw street, it was in law negligence for him to attempt to use it, though he saw others passing through- in safety immediately before him, and although the jury might believe his statement that he saw no motion, heard no signal, and received no warning, and that there was no employee of the company at the place to give notice of approaching danger to pei’sons attempting to cross.

In view of these considerations, and of alb the proof in the cause, we are of opinion the Court properly refused to instruct the jury on the question of contributing negligence, as asked in these prayers.