Gordon v. Chait

Pattison, J., delivered the opinion of the Court. This is an appeal by Rubin Gordon, defendant below, from a judgment recovered against him in favor of Harry Chait, the appellee. The suit was brought by Chait against Rubin Gordon and Doris Gordon, to recover for personal injuries received by him in being struck and knocked down by an automobile driven by Rubin Gordon, while he, Chait, was attempting to cross Hamilton Terrace at the corner of Madison Street. The defendant, Doris Gordon, was eliminated from the case by a directed verdict in her favor.

At the conclusion of the evidence, both the plaintiff and defendant asked for instructions of the court. The defend ²⁰⁴ ant by his “A” and “B” prayers asked for a directed verdict, bnt they were refused. By his “No. 2” prayer he asked the court to- instruct the jury “that if they shall believe that the plaintiff contributed to- his own injury by any failure (however slight) to exercise that degree of care and caution for his own safety which prudent persons ordinarily exercise-under similar circumstances, then their verdict shall be for the defendants.” This prayer as offered was refused, but,, after striking therefrom the words “however slight,” it was-granted. In making this modification, the court attempted to obliterate with his pen the words mentioned, but in doing so, it is claimed, the obliteration was not complete, that is,, the words could thereafter still be seen and read.

The counsel for the defendant, both in his oral argument and in his printed brief, concedes that the- court committed, noi error in its rulings on the defendant’s “A” and “B”' prayers, allowing the case to go to the jury. The contention,, however, is made by the defendant that the co-urt first erred in its modification of his “No-. 2” prayer, and secondly in its failure to more- completely obliterate the words intended to be stricken from the prayer, so they could not have been read by the jury. These are the only two questions to be-determined on this appeal. In support of his contention that these words should have-remained in the- prayer and not been stricken therefrom, the defendant cites the case of Fenneman v. Holden, 75 Md. 1, in which the court, at the request of the defendant therein, instructed the jury that their verdict should be for the- defendant if they found “that the accident complained of was in any degree owing to a want of due care and caution at the-time of the accident on the part of the plaintiff, directly contributing thereto.’’ The use of the- words “in any degree” in that prayer are construed by the defendant to have the same meaning and effect as the words “however slight,” found in the prayer before us.

In the case cited, the prayer mentioned was a granted prayer' of the- defendant, against whom the- verdict was rendered, and the judgment appealed ²⁰⁵ from entered; consequently it was not reviewed or passed upon by this court on the defendant’s appeal; and our attention lias not been called to any case where a like prayer has received its approval. The court by its modified prayer, at the request of the defendant, instructed the jury, in accordance with the well established rule of law, that the degree of care and