Klipper v. Coffey

Brent, J., delivered the opinion of the Court. The question, presented by the first and second exceptions in this case, is one of contributory negligence. It arises upon two prayers, asking the Court to instruct the jury that the evidence discloses such contributory negligence on the part of the plaintiffs, as will prevent them in law from any recovery of damages for the injury set forth in their declaration. The appellants, it seems, are the owners of a furniture wagon, used by them to convey articles of furniture to and from their warehouse.

On the day when the accident happened, which, it is claimed, caused the damages complained of, the wagon in question was engaged in carrying furniture from the Northern Central depot to the warehouse of the appellants on South Calvert Street. In so doing, it had to pass, in its direct route from the depot, through Monument Square the place of the accident. ¹²⁷ The appellees are the owners of carriages kept for hire, and on the same day were on the stand, assigned for such carriages in Monument Square, with their carriages. As the wagon of the appellants came near the place where one of the carriages of the appellees was standing, a part of the furniture loaded upon it fell off with a loud crash, causing the horses of the appellees to run off. The driver at the time was not upon his seat, but was some distance off. lie ran up however, and catching one of the horses by the bridle succeeded in stopping them, but not in preventing injury to both carriage and horses.

The appellants, after this evidence had been introduced on the part of the appellees, called the attention of the Court to one of the ordinances of the City of Baltimore, page 90, sec. 14, of Baltimore City Code, and thereupon asked the Court to instruct the jury : “ That the conduct of the plaintiffs as disclosed by the testimony was such contributory negligence in law as to bar a recovery on the part of the plaintiffs, though a want of ordinary care should be proved on the part of the defendants in the management, loading and driving of their wagon as it is charged and set forth in the plaintiffs’ narr. ’ ’ This instruction the Court refused to give, and it forms the first exception. Although the appellee may have been in violation of the ordinance referred to, by not being as near his carriage and horses as the ordinance requires, it by no means follows, as a matter of course, that his conduct contributed directly to the injuries complained of. Because a plaintiff is himself negligent or is acting in violation of a law, lie is not therefore prevented from recovering damages for an injury, which has resulted from the negligence of a defendant, where but for the want of ordinary care on the part of the defendant the misfortune would not have happened. In the case of Davies vs. Mann, 10 M. & W., 545, referred ¹²⁸ to in Northern Cen.

R. R. Co. vs. Price, 29 Md., 432 , where a fettered donkey was turned by his owner upon a public highway and injured by a 'passing wagon, the Court held, that though the act of turning him upon the highway in that condition might be illegal, yet if the jury thought the accident might have been avoided by ordinary care on the part of the driver, they must find for the plaintiff. In the case of The Baltimore & Ohio R. R. Co. vs. State, use of Trainor, 33 Md., 554 , it was held that the appellees could maintain their action because of the want of ordinary care on the part of the agents of the Railroad Company, although the party killed was negligently and wrongfully on the railroad track when the accident occurred. The same doctrine is found in the later case of The Balto. & Ohio R. R. Co. vs. State, use of Dougherty, 36 Md., 366 . Numerous other cases might be cited to the same effect, but the doctrine is now too well settled to be doubted.

In the case of Steele vs. Burkhardt, 104 Mass., 59 , the action was maintained for injury done to a horse left standing in one of the streets of Boston, in violation of a city ordinance. The same defence was set up in that case as in this. The Court say “It did show negligence in respect to keeping the ordinance, but did not necessarily show negligence that contributed to the injury.” See also Kearns vs. Snowden, 104 Mass., 63 , (n;) Albert vs. Bleecker Street R. R. Co., 2 Daly, 389 . These last cases are