Baltimore Traction Co. v. Appel

Briscoe, J., delivered the opinion of the Court. The appellee brought suit against the appellant, a street railway company operating its lines in the city of Baltimore, for injuries sustained by reason of the negligence of one of its employees while propelling an electric car on the public streets of that city. The case was tried before a jury and, the judgment being for the plaintiff, the company has appealed. The questions arise solely upon exceptions to the rulings of the Court upon the prayers and a construction of the Act of 1894, chapter 185, relating to “Special Findings of Facts by Court or Jury,” Upon the close of the plaintiff’s testimony, the Court was asked to withdraw the case from the jury; first, because of the contributing negligence of the plaintiff; and secondly, because there was no legally sufficient evidence to entitle the plaintiff to recover.

And the failure of the Court to so instruct the jury forms the basis of the first bill of exception. In refusing to grant these prayers or either of themj the Court committed no error, because there was evidence, if the jury believed it, to entitle the plaintiff to recover. ⁶⁰⁹ The Court having refused at this point of the case to take the case from the jury, the appellant offered its evidence, and the second exception embraces the rulings of the Court at the close of the testimony upon the prayers of both plaintiff and defendant. There were seventeen prayers in all. The first, second, fourth and fifth prayers of the plaintiff were granted and the third rejected.

All of the defendant’s prayers were rejected except its twelfth, and the Court granted in lieu of the rejected prayers an instruction of its own, which we will hereafter consider. The first, second and fourth prayers of the plaintiff were properly granted, and have been approved in recent street railway cases decided by this Court. Baltimore Traction Co. v. Wallace, 77 Md. 435 ; Central Railway Co. v. Coleman, ante, p. 328; Arnreich's case, 78 Md. 589 ; Cooke v. Traction Co., ante, p. 551. The fifth prayer related to the measure of damages in the event of a verdict for the plaintiff, and was not seriously controverted by the defendant.

By the first, second and third prayers of the defendant, which had been previously rejected, the question as to what constitutes contributory negligence, was sought again to be made one of law for the Court rather than one of fact for the jury to determine, upon the facts of the case. This Court has repeatedly decided that the question of negligence or the want of ordinary care where there was a contrariety of evidence in cases like the one here presented, is one of fact for the jury. This is the approved doctrine both in England and this country, and we deem it unnecessary to refer again to the adjudicated cases bearing upon it. As already stated, these prayers, under the facts of this case, were properly rejected.

The prayer granted by the Court in lieu of the other rejected prayers of the defendant fully and fairly covered the law of the case. It told the jury that if the plaintiff was guilty of the want of reasonable and ordinary care in attempting