Booth v. McLean Contracting Co.

Briscoe, J., delivered the opinion of the Court. This action was brought by the appellant to recover damages of the appellee, the McLean Contracting Company, a body corporate, engaged in the construction business, for personal injuries sustained by him while in the employment of the appellee company as a laborer. The declaration contains three counts. The first charges negligence in the construction and maintenance of certain cars operated by the company.

The second charges negligence in failing to furnish proper machinery and a properly constructed structure or trestle upon which to operate its cars. The third charges negligence in failing to furnish the appellant with a safe, suitable and properly lighted place in which to perform his work. The questions brought to this Court for review relate to the rulings of the Court in the rejection of the plaintiffs prayers, and in the granting of the defendant’s prayer, which instructed the jury that the plaintiff was guilty of contributory negligence, and by such negligence directly contributed to the accident in question and that their verdict must be for the defendant. Assuming, then, the negligence of the defendant, the question is, were the facts and circumstances of the case so patent and plain as to have justified the Court in pronouncing them contributory negligence in law, and in withdrawing the case from the consideration of the jury.

The law is well settled in this State bearing upon this class of cases, and it is this, where the facts of a case are undisputed or where but one reasonable inference can be drawn from them, the question is one of law for the Court, but where the facts are left by the evidence in dispute, or where fair minds might draw different conclusions, the case should go to ⁴⁵⁹ the jury. In other words, all the cases hold that unless there is some prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ, Courts will not withdraw the case from the consideration of the jury. In the case of Gardner v. Michigan Central R. R. Co., 150 U. S. 359 , the Supreme Court thus lays down the rule: The question of negligence is one of law for the Court only where the facts are such that all reasonable men must draw the same conclusion from them. A case should not be withdrrwn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts, the evidence tends to establish.

All of the cases in this State hold that Courts should never assume the responsibility of withdrawing a case from the jury, unless the case is a very clear one and presents some prominent and decisive act, in regard to the effect and character of whieh no room is left for ordinary minds to differ. Where a doubt exists as to whether the conduct of the plaintiff under all the facts and circumstances constitutes such contributary negligence as should prevent him from recovering, ths question is one of fact to be determined by the jury. In the case at bar the sole question for our consideration is whether or not the Court committed an error in granting the defendant’s prayer, which withdrew the case from the jury because of the alleged contributory negligence on the part of the plaintiff. In this case the question of negligence vel non of the defendant is not an issue, because the prayer granted at the instance of the defendant, assumes the negligence of the appellee as one of the contributory causes of the accident.

In Strauss v. United Rys. Co., 101 Md. 498 , it is said: The prayer assumes the negligence of the appellee as one of the contributory causes of the accident and, therefore, the special matter for us to consider, is whether upon the evidence contained in the record and substantially restated here, the case should have been submitted to the jury for its determination as to the alleged contributory negligence of the appellant. ⁴⁶⁰ The law applicable to this character of case is clear and well settled. In Vonderhorst Brewing Co. v. Amrhine, 98 Md. 414 , this Court said, if there was no primary negligence on the part of the defendants, there could be no contributory negligence on the part of the plaintiff. Contributory negligence necessarily pre-supposes primary negligence, which would of itself sustain an action but for the concurrence of the contributory negligence.

In the case of Cooke v. Street Railway Company, 80 Md. 558 , it is said, where the nature and attributes of the act relied-on to show negligence contributing to the injury can only be correctly determined by considering all the attending circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it and it is not for the Court to determine its quality as matter of law. Strauss v. United Rwy. Co., 101 Md. 499 . The question of contributory negligence in the case now before us, is not free from difficulty and doubt, and such being the case, it