Carr Ex Rel. Carr v. United Railways & Electric Co.

Burke, J., delivered the opinion of the Court. Suit was brought by Alexander R Garr, an infant, by his mother and next friend, against the Uinited Railways and Electric Company of Baltimore, a body corporate, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. At the conclusion of the plaintiff’s case the Court granted three prayers: First, that there was no evidence legally sufficient to entitle the plaintiff to recover*; second, that there was no evidence of any negligence of the defendant, its agents and servants, which was the direct and proximate cause of the injury; and thirdly, that the plaintiff was guilty of negligence which directly contributed to the cause of the injury sued for. [Neither of the prayer’s refers to the pleadings, and in the absence of such reference the correctness of the instructions must be determined entirely by a consideration of the evidence. This is firmly settled in our practice.

In obedience to these instructions the jury found their verdict for the defendant, and from the judgment entered thereon the plaintiff has brought this appeal. The following facts appearing in the evidence adduced in support of the plaintiff’s case are all that need be stated to enable us to dispose of the legal questions raised upon the record. The defendant owns and operates an electric railway which runs through Baltimore City to Bay Shore Park, in Baltimore County. On June 3, 1916, the plaintiff, who was then about fifteen years of age, attended a Sunday School picnic at P'enwood P'ark, in Baltimore County.

This park was'located some little distance from the line of the defendant’s road, and there was a roadway leading from the defendant’s tracks to> the park. At the intersection of this road with the defendant’s right of way, which it crosses at grade, ³⁰⁹ there is a platform provided for passengers to alight from or enter the cars, but it does not appear to be a regular stopping-place. Approximately oneshalf of a mile eastward from the Pemwood Park crossing the defendant’s road crosses Jones’ •Greek over an open bridge owned by the defendant. There is no railing or other protection on this bridge, and no boards or ways provided for pedestrians to walk across it.

It is a. drawbridge. At the west end of the bridge there is a stopping place at grade similar to that at the Pemwood Park crossing. Between that crossing and the bridge the track is of “T” rail construction, and there is a curve in the track beginning a short distance from the Pemwood crossing. From the stopping place at the west emd of the bridge there is a path which leads through the woods to the light house and from there to Pemwood Park.

The plaintiff used the defendant’s road in going- to the picnic. Hie got off at the Penwood crossing and went to tho park. He and three companions afterwards went over to the bridge and walked across the ties to the east side where they rented a boat. After having returned the boat, he and his companions walked back across the bridge on their return to the picnic grounds.

One of the defendant’s cars going west approached and stopped at the draw. The plaintiff asked the conductor, who was standing on the bade platform of the car, to let him ride across the bridge and was told by the conductor to “'jump on.” Thereupon the plaintiff got on the outer left-hand side of the rear platform and held on to the bar in front of him. The safety gate on that side was closed. The ear went slowly across the bridge, but did not stop at the end of the bridge where the plaintiff intended to alight.

What took place at that- point is thus described by the plaintiff : “As the front part of the car got on land the conductor gave two bells and it started ahead, and I was scared to jump on account of the fact there was some pebbles down there and there was a hole about that big (indicating), and another car came around at the same time and I was scared of getting-hit by the other car, so I just kept on riding.” From that ³¹⁰ point to the Penwood crossing the car ran with great rapidity, the plaintiff dinging to the bar in full view of the conductor. The