Maryland Ice Cream Co. v. Woodburn

²⁹⁶ Stockbridge, J., delivered the opinion of the Court. Preston Woodburn, the plaintiff below, and appellee here, caused this suit to be instituted to recover for personal injuries received in the following manner: On the seventeenth of July, 191Y, Woodburn was a passenger on the car of the United Railways Company bound north on Light street. The car was of the type commonly known as “summer car,” open on the sides and having a foot-board running the length of the car, and he was seated on next to the front seat, facing the motorman. The car passed Cross street headed northward towards a small street known as Poultney street, with Hamburg street still further north, which was of the customary width of streets in-Baltimore City.

Following the car for several blocks was a motor truck belonging to the defendant, the Maryland Ice Cream' Company, and driven by one of its employees, in the regular course of his employment. As the car approached Hamburg street it slowed down for the purpose of stopping at that street, and the plaintiff, Woodburn, stepped from his seat onto the running board to alight from the car. He did so alight just before the car came to an absolute rest, and he had scarcely gotten his feet on the ground when he was struck by the auto-truck, carried a little distance and thrown to the ground, with the result that his skull was fractured and he was considerably bruised in addition. As is usually the case in accidents of this description, there was considerable conflict of evidence upon certain points; for example, the speed of the car, the distance from the point of collision to where the truck was stopped, and there was ample testimony given on the part of the plaintiff as to the speed of the machine, and the distance the machine proceeded after striking Woodburn, to have warranted a finding of negligent operation on the part of the chauffeur, so that the case could not have been properly withdrawn from consideration of the jury, upon the ground of absence of evidence ²⁹⁷ tending to show negligence on the part of the employee of the Ice Cream Company.

Three exceptions appear in the Record. The first of these, which related to the admission of evidence, was not pressed at the argument in this Court by the appellant, hut was virtually waived. The second exception was to the admission of the acts and ordinances relating to the rules of the road, and which were admitted by the Court. The evidence so offered was not very material, because the purpose for which the offer was made was of enactments which were simply declaratory of the common law, and, therefore, no reversible error can be predicated upon the action of the Court upon this offer of evidence.

The main exception of the defendant is that which had to do with the ruling of the Court upon the requests for instructions to the jury. The plaintiff offered hut a, single prayer, and that the prayer upon the measure of damages in the event of a verdict for the plaintiff, and which was in the sterotyped form. A special exception to this prayer was filed upon the part of the defendant, which exception was overruled, and properly so, since it sought to engraft upon that prayer the question of negligence of the defendant’s servant in the operation of the truck. The defendant offered ten prayers, of which the 3rd, 4th, 5th, 6th, 7th, 9th and 10th were granted, and the 1st, 2nd and 8th refused.

In what has already been said it is perfectly apparent that the action of the Court on the defendant’s, first prayer was correct. The defendant’s, second and fourth prayers both dealt in varying phraseology, with the question of contributory negligence; the second prayer asking for a directed verdict upon this ground, and the fourth leaving the question of contributory negligence as a matter to be found by the jury, under all the circumstances of the case, and also seeking to apply the doctrine of the last clear chance. ²⁹⁸ There were cited on briefs of counsel in addition to the previous decisions of this State, a considerable number of decisions from other states; but inasmuch as the law applicable to such cases has been fully declared in previous decisions of this Court, it does not seem necessary to discuss decisions elsewhere. The facts testified to upon which reliance is placed to sustain the defendant’s' second prayer are, first, that the plaintiff having left a place of absolute safety in the car by stepping upon the running-board before the car, upon which he was a passenger, had come to a “dead stop,” thereby assumed a risk which will preclude his recovery. The tacts as to the cause of the accident were radically different, therefore, from those which appeared in Baltimore and Yorktown R. Co. v. Cason, 72 Md. 382, and Baltimore Cons.

Ry. Co. v. Foreman, 94 Md. 232 , and come much more