Central Railway Co. v. Smith

Briscoe, J., delivered the opinion of the Court. This action was brought by the appellee against the appellant, the Central Railway Company, to recover damages for personal injuries alleged to have been sustained by the plaintiff, while a passenger on the company’s road, on account of the negligence of the company’s employe. The defendant is a street railway company operated hv horse-power in the City of Baltimore, and its defence was contributory negligence on the part of the plaintiff. The case was tried before a jury, and resulted in a verdict and judgment for the plaintiff.

At the trial of the case below the Court rejected the prayers offered, both by the plaintiff and the defendant, except ²¹⁷ one as to the assessing of damages, and gave the following instructions in lieu thereof: (1.) “If you find that the plaintiff’s injury was occasioned by any want of ordinary care or skill on the part of the defendant’s driver, such as by starting his car prematurely, or without affording the plaintiff a reasonable opportunity, under the circumstances, of taking a safe position, or otherwise, she is entitled to recover.” (2.) “But if you find any failure of the plaintiff at the time to exercise ordinary care on her part, as by attempting to leave the car while in motion, or otherwise, and that the same directly contributed to the accident in such wise that without such failure the accident would not have occurred, then the defendant is entitled to a verdict, unless yon further find that the peril to which the plaintiff so exposed herself could have been discovered by the driver in time for him, by the exercise of ordinary care on his part, to have avoided the accident.” (3.) “ By ordinary pare is understood that degree of caution, attention, activity and skill, which are habitually employed by, or .may reasonably be expected from, persons in the situation of the respective parties, under all the circumstances surrounding them at the time.” (4.). “The burden of proof is on the plaintiff to show want of ordinary care on the part of the defendant’s agent, and on the defendant to show contributory negligence on the part of the plaintiff; but the plaintiff is entitled to the benefit of the presumption, that persons ordinarily take care of themselves, and the defendant is entitled to the benefit of the principle that in exceptional cases persons are heedless; and it is for the jury to find from all the circumstances in evidence upon the principles laid down, whether either of the parties, and which of them, was responsible for the accident.” To the granting of these instructions, and to the rejec ²¹⁸ tion of the defendant’s prayers, the defendant excepted. The only question, therefore, presented hy this appeal is the correctness of the Court’s instructions in lieu of the rejected prayers. If the Court below was right in rejecting the prayers offered hy both plaintiff and defendant, and substituting its own, and they contained the correct principles of law, governing such a case, and the defendant suffered no injury thereby, then the judgment, below will have to be affirmed. Testimony was taken at the trial showing