Baltimore Traction Co. v. Maryland

Pace, J., delivered the opinion of the Court. On the 26th May, 1891, Edward Ringgold, desiring to take one of the defendant's cars to go to his business, left his home, having in his right hand a beer bottle containing cold tea, and on his left arm a small basket, about eight inches long, containing his lunch. He stopped on the west side of Druid Hill avenue, at a point- twenty-five or thirty feet south from Dolphin street, and there he raised his arm for the purpose of signalling a car which was then coming down the avenue. Gallagher, the gripman, states, that he saw him standing there looking at the cars, but “saw no signal or indication on the part of the deceased that he wanted to get on the car.” As the car came down the avenue, it slowed up as it approached Dolphin street, and as it crossed “it was going slow,” hut after it reached the south side of Dolphin street, its speed was suddenly increased.

The gripman gives as the reason for this that when he approached Dolphin street, “there was a gentleman who got on the trailer, * * * and that after passing the south-corner, * * * and seeing no one there to get on, the witness started the train up gradually until five hells were rung, which was the signal to stop immediately.” When the car had passed about thirty feet from Dolphin street, and while it was still moving, the deceased, who had moved into the street, made an effort to get on. Before he could do so, the speed of the car was increased. He grabbed the car with his left hand, and, running by its side, tried to board it. The conductor seeing him in this position, seized him under the arm to prevent him from falling.

The deceased then told him, “Let go my arm, I can get on,” and twice he ⁴²¹ repeated the words “Let me go;” and the conductor, though he says, he thought he could hold on to him, and thus prevent an accident, then let him go, whereupon he fell, and was killed by being run over by the trailer. It also appears from the evidence that the conductor, after he seized Ringgold, was unable to make the signal to stop the car, until after he let him go, because of the fact, that both his hands were then occupied, — - one in holding Ringgold, and the other in retaining his own position on the car. The train consisted of two cars, the power being in the forward one. There was a conductor on each car, and a bell on the trailer, which did not connect with the bell on the grip-car, and could not be heard by the gripman, in consequence of which all signals from the trailer had to be repeated by the conductor on the grip-car, in order to reach the gripman.

By Rule 7 of the company, gripmen were required to keep a sharp look-out for passengers, and stop train at proper place to receive them, looking in each direction at cross streets; to stop trains to take on and let off passengers at the far side of cross streets (except where special notice should be given from time to time of other places,) and stop so that the rear platform of the rear car will be over the flagstones. Ringgold was about forty-two years of age, a little over five feet two inches in height, and weighed above two hundred pounds. He was active, intelligent for a man o£ his color, temperate, and accustomed to use the cars daily. The parties offered several prayers, all of which (except the seventh of the plaintiff’s, upon the measure of damages,) the Court refused, and granted in lieu thereof instructions of its own, intended to cover the whole case; and the rejection of the defendant’s prayers, the granting of the seventh prayer of the plaintiff', and the instructions given by the Court, constitute the defend ⁴²² ant’s first exception.

The objection to the seventh prayer of the plaintiff was not pressed at the argument. Also, it was not contended that it was error to refuse the defendant’s prayers though correct in themselves, if the instructions actually given by the Court, cover the same points in other forms. It was insisted, however, that the Court’s instructions were erroneous, and did not present the case to the jury as particularly as the defendant was entitled. By the defendant’s first prayer, the Court was asked to instruct the jury, that the deceased was guilty of such carelessness as to amount in law to contributory negligence, if they found that being of the age and physical condition stated in the evidence, he received his injuries in consequence of his attempt to board the car, while it was moving at the rate of six or more miles per hour, with a bottle in his right hand and a basket on his left arm, and by reason of being so encumbered, was prevented from grasping with his hand the handle attached to the car.

While it is well settled that where there- is a contrariety of evidence, and the question of care or negligence depends upon the consideration of a variety of circumstances, “the most a Court can do 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;” Batlo. & Ohio Railroad Co. vs. Fitzpatrick, 35 Md., 44 ; yet cases do occur, in which there is clearly established such glaring acts of carelessness on the part of the plaintiff, as to amount in law to contributory negligence and in such it is the duty of the Court when requested, so to instruct the jury. McMahon vs. North. Cent. Railway Co., 39 Md., 449 .

This prayer, however, does not take from the jury the finding of the facts upon which it is based. The Court ⁴²³ is asked to instruct them that the deceased was guilty of •contributory negligence, as matter of law, but only upon the hypothesis of their finding the several facts stated in the instruction. Such a conclusion, in a case like this, is ordinarily a matter to be submitted to the jury, to be determined by them. Even if the facts were conceded or proved beyond the possibility of contradiction, it may still, sometimes, be a matter of doubt, whether the danger was so apparent as to make it the duty of the person to desist from the attempt.

But when on account of the rate of speed, or for other reasons, no reasonably careful person, of ordinary strength and agility, would make the effort, it is then negligence in law, and it is the duty of the Court, on proper application, so to instruct the jury. Corlin vs. West End Street Railway Co., 154 Mass., 198 ; Picard vs. Ridge. Av. Pass.

Ry. Co., 23 At. Rep., 566 ; New York, Phila. and Norfolk R. R. Co. vs. Coulbourn, 69 Md., 369 ; Baltimore & Ohio Railroad Co. vs. Kane, 69 Md., 21 ; Cumberland Valley Railroad Co. vs. Maugans, 61 Md., 61 . The proof shows that Ringgold was about forty-five years of age, and accustomed to use the cars daily.

He was extremely stout in proportion to his height. His weight was about two hundred pounds, though his height was slightly over five feet two inches. His wife 'testifies, that he was very active; another witness, that he was “fairly active.” There was testimony tending to prove that the rate of speed when he attempted to board the car was six miles an hour or more. He was encumbered by having in his right hand a beer bottle, and on his left arm a basket about eight inches in length, and being so encumbered, there was evidence tending to show that he ran alongside the car endeavoring to leaj) or climb upon it.

We are of the opinion that if under these circumstances the deceased chose to make the experiment of attempting to enter the car, he ⁴²⁴ must be required to bear the consequences of his own act, unless the defendants, when they discovered his peril, failed to use the proper diligence in endeavoring to avert the injury. Phillips vs. Rensselaer and Saratoga R. R. Co., 49 N. Y., 177 ; Reddington vs. Philadelphia Traction Co., 132 Pa. St. R., 154. It is also contended that the prayer was bad because it permitted the jury to find a verdict for the defendant, without requiring them also to find that the peril of the-deceased could not have been discovered by the driver, by the exercise of diligence in time to avoid the accident.

But under the theory of this prayer we do not think this would have been proper. The hypothesisujDon which they could find for the defendant, was, that Ringgold had negligently attempted to enter the car. If they so found, such conduct would be the proximate-cause of the injury, unless there supervened some contributing negligence on the part of the railway. Proximate cause is the act which directly produces the injury.

Baltimore and Ohio R. R. Co. vs. Trainor, 33 Md., 542 . And if that was due to the improper conduct of the deceased, or if such conduct so far contributed to it,, that- without it, the accident would not have occurred,, the plaintiff would not be entitled to recover, unless the-defendant could by care and prudence, have avoided the consequence of such negligence. Lewis vs. Balt. & Ohio R. R. Co., 38 Md., 588 . If, therefore, the jury found that the cause of the-accident is to be attributed in this case to the act of the deceased in having attempted to board the car, when it was obviously imprudent for him so to do, the fact that the agents of the defendant failed to stop the car, although such failure may have been a breach of duty on their part, cannot affect the question.

By the rules of the company, it was the duty of the gripman, to keep “a sharp look out for passengers, and ⁴²⁵ stop the car at proper places,” but if he failed to do so, it would not authorize the deceased to do an imprudent act, and thereby place himself in peril. If a party thinks proper to make an experiment, under circumstances of peril open and known to him, and which he could reasonably have avoided, he must bear the consequences of his own act. Dietrich vs. Balto. & Hall’s Springs Railway Co., 58 Md., 359 . If the car was moving too rapidly for any man, encumbered as the deceased was, prudently to attempt to board it, it was not the duty of the defendant’s agents to notify him not to make the effort.

They were authorized to infer, that being a sane person, and sui juris, his own sense of danger would prevent him from doing an obviously imprudent and dangerous act. Many cases may be cited to support this statement. In Frech vs. Phila., Wilm. & Balto. R. R. Co., 39 Md., 580 , where a person was run over by the defendant’s cars, while on the latter’s track, the Court says: “The