Grabrues v. Klein

Briscoe, J., delivered the opinion of the Court. This was an action brought in the Court of Common Pleas of Baltimore to recover damages for personal injuries sustained by the appellant, resulting from the negligence of the appellee’s servant in driving a cart along the streets of Baltimore. At the conclusion of the plaintiff’s evidence the Court instructed the jury that the negligence of the plaintiff directly contributed to the injury, and their verdict must be for the defendants. And it is from the judgment thus entered on the verdict that this appeal is taken.

The only question, then, presented by the exception to the prayer is, whether the case should have been submitted to the jury, or whether the facts were so clear and plain as to have justified the Court in pronouncing them contributory negligence as a matter of law. And, as the prayer is in the nature of a demurrer, it becomes necessary to examine the evidence upon which it was based. The plaintiff testified that at the time of the accident he was on the east-going car track, on Hillen street, driving three horses attached to a farm wagon loaded with manure, and was walking close by the side of his wagon, and only occupying one-half of the east-going track ; that when he first saw the appellee’s cart it was about ten or twelve feet from him, coming down the west-bound car track, the cart being loaded with bricks and drawn by a mule, but no driver was in view. He further testified, that when about four or five feet from him, the mule turned directly across the street, catching him between the hub of the wheel of the appellee’s cart and the rubbing-block or brake of his own cart, thereby inflicting a serious and permanent injury to his left leg.

He also testified, that as soon as he saw the mule and cart coming towards him, he made an effort to avoid the accident; that he was prevented from advancing to the front, and in endeavor ⁸⁶ ing to escape by trying to step backward was caught and dragged against the brake or rubbing-block of his wagon. In the language of the witness, “When I saw the mule coming towards me I wanted to get out of the way, but