McMahon v. Northern Central Railway Co.

Robinson, J., delivered the opinion of the Court. This suit was brought by the plaintiff through his next friend, to recover damages for injuries alleged to have been caused by the negligence of the defendant. At the time of the injury, the plaintiff was five years and nine months old, and lived with his parents on the east side of Canal street, between Grough and Bank, in the city of Baltimore. The defendant owns two railroad tracks on Canal street, which were used for freight cars drawn by horses.

About ten o’clock on the morning of the 17th of December, 1870, the mother of the plaintiff sent him with a basket of rags to a junk store, situate on the west side of Canal street. She went to her front door with him, and seeing the street blocked by ears, from Eawn street to Bank, cautioned him to beep away from them, ⁴⁴⁸ and told him to go up to G-ough street, and thence to cross Canal street. The plaintiff went to the junk store, sold his rags, and on his way home was run over by the defendant’s cars, and so injured as to render amputation of his leg necessary to save his life. One of the witnesses who was driving a wagon between the two railroad tracks on Canal street, going towards Bank, saw the car wheel on the east rail of the west track, pass over the plaintiff’s leg.

The brakeman was walking leisurely behind this witness, and called several times to the driver to stop, but the latter did not seem to hear him, and it was some time before the cars were stopped. The cars started suddenly, and evidence was offered to prove that no signal or warning of any kind was given at the time of starting. The driver sometimes blew a horn, and sometimes he did not. The plaintiff also offered in evidence an Ordinance of the city of Baltimore, providing that in all cases where a railroad company occupies a street with cars, an opening of not less than twenty feet shall be left at or near the centre of the square, in order that foot passengers, carts, drays and other vehicles, may pass from one side of the street to the other ; and proved that no such opening was left by the defendant.

The plaintiff was a boy of unusual intelligence, and was in the same class at school with an elder brother eight years old. Upon these facts, no evidence being offered by the defendant, the Court instructed the jury, 1st. That the plaintiff contributed to his own injury, and therefore was not entitled to recover under the circumstances of this case. 2d. That there was no evidence of any negligence, or want of care on the part of the defendant, which under the circumstances of this case, caused the injury to the plaintiff. ⁴⁴⁹ To the granting of these instructions, and to the refusal of the several prayers offered by the plaintiff, he excepted.

The appellee admits that the question of negligence as a general rule, is one for the determination of a jury, but contends that in this case, the evidence offered on the part of the appellant, proves such carelessness or want of ordinary care on his part as to amount in law to contributory negligence, and that the Court was, therefore, right in taking the case from the jury. It is true where the direct fact in issue is established by uncontradicted evidence, and such fact is decisive of the cause under trial, a question of law is raised, which it is the duty of the Court to decide. Cases may and sometimes do occur in which the uncontradicted evidence proves such a glaring act of carelessness on the part of the plaintiff as to amount in law to contributory negligence, and in such it is the duty of the Court when requested to decide the question without the intervention of the jury. Lewis vs. The Baltimore & Ohio Railroad Co., 38 Md., 588 , and The Pittsburg & Connellsville Railroad Co. vs. Andrews, ante p. 329.

But in no case ought the Court to take the question of negligence from the jury, unless the conduct of the plaintiff relied on as amounting in law to contributory negligence, is established by clear and uncontradicted evidence. In support of the Court’s instruction in this case, it is insisted that the evidence conclusively proves that the injury complained of was occasioned by an attempt on the part of the plaintiff, to pass under the cars, while in motion. If this fact had been established by direct and uncontradicted evidence, we do not hesitate to say that such an attempt on the part of the plaintiff would in our opinion, have amounted in law to contributory negligence, or if the jury should so find, the plaintiff was not entitled to recover. But there is not a single witness who tes ⁴⁵⁰ tifies when or how he got under the cars — whether he attempted to pass between them before they started, or under them while in motion.

The junk dealer says, “in a couple of minutes” after the plaintiff left the store, he heard a noise, and looking out, saw the car wheel passing over him. It is true, when the witness Mann saw the wheel passing over the plaintiff’s leg, the horses attached to the cars had passed Bank street, which runs across Canal street, but the cars extended to Bank street, and although it may be argued from this and other facts, that the plaintiff must have attempted to crawl under the cars wtiile in motion, yet after all, it is but an inference, and being an inference, ought to have been submitted to the jury. We do not, however, intend to discuss the facts in this case. The evidence has been carefully examined and deliberately considered, and we are of opinion that the question of contributory negligence on the part of the plaintiff ought to have been submitted to the jury.

We think the Court erred also in instructing the jury there was no evidence of negligence or want of care on the part of the defendant. Canal street, between Fawn and Bank, had been blockaded by the defendant’s train of freight cars from between five and six o’clock in the morning until 10 — nearly five hours — and evidence was offered to prove that they started suddenly — that no signal, or warning of any kind was given, and that the brakeman was walking leisurely by the side of the train. The public were entitled, in common with the defendant, to the use of this street, and the fact that the defendant had the right to use the railroad track for its freight cars, constitutes no excuse or justification, if the plaintiff was injured by the negligent manner in which-this right was exercised. Whether ordinary care on the part of the defendant, having a prudent and considerate regard for the safety of others, entitled to the use of the street, ⁴⁵¹ required that a signal or warning of some kind should be given in moving a freight train, extending nearly a whole square, and which had been standing on the track for more than four hours, or whether the brakeman was in the proper place to stop the cars by the use of the brakes, should it become necessary to do so ; or whether under all the circumstances, the defendant exercised the care and prudence which might reasonably be expected, were questions for the jury to decide.

No absolute rule in regard to negligence can be laid down to cover all cases. What would be ordinary care in one case, might be negligence in another, the relative degree of care or want of it, depending upon the circumstances of each particular case. In the record before us there is evidence from which the jury might or might not have found negligence on the part of the defendant, and the Court erred in deciding there was no evidence from which such a deduction could be made. Assuming then, that the Court ought to have submitted the question of negligence to the jury, .the plaintiff’s first prayer presented the law in regard thereto, in as favorable a light for the defendant, as it had any right to ask.

If the injury resulted directly from the want of ordinary care and prudence on the part of the defendant, and not from the want of such care and prudence on the part of the plaintiff, as ought under all the circumstances to have been reasonably expected, from one of his age and intelligence, or from the want of ordinary care and prudence on the part of his parents, directly contributing to the accident, the plaintiff certainly was entitled to recover. By this instruction the question of negligence not only on the part of the plaintiff, but also on the part of his parents, was submitted to the finding of the jury. It is not necessary to review the many cases in which the degree of care and prudence to be exercised by an infant, has been considered, nor the principles upon ⁴⁵² which, they have been decided. There is, it is true, some conflict in the decisions on this question, but the weight of authority both in this country and in England, is decidedly in favor of holding a child so far as he is personally concerned, only to such degree of care as ought reasonably to be expected among children of his age and intelligence.

See cases referred to in Shearman and Redfield on Negligence, sec. 49. The rule thus laid down was distinctly recognized by this Court in Fryer’s Case, 30 Md., 47 . The second prayer ought also to have been granted. If the injury complained of resulted from the want of ordinary care and caution on the part-of the defendant, the plaintiff was entitled to recover; provided the jury found that the accident causing the injury could not have been avoided by the exercise of such care and caution by the plaintiff, as ought uuder all the circumstances, to have been reasonably expected from one of his age and intelli|gence, or by the exercise of ordinary care and caution on the part of- his parents.

Fryer’s Case, 30 Md., 47 . We find no error in the refusal of the plaintiff’s third prayer. The facts and circumstances in this case differ widely from Trainor’s Case, 33 Md., 542 , relied on in support of this prayer. In that case the plaintiff' was walking on the railroad track, near the viaduct, which crosses the Patapsco river, and by the rules and regulations of the Company, it was the duty of the engine man, on his approach to all bridges, to sound his whistle clearly and distinctly, and to cause the fireman to ring his bell, &c.

This Court said, although the plaintiff was guilty of the want of ordinary care and prudence, in walking on the railroad track, yet, if the jury should find that the-accident would not have occurred but for the negligence on the part of the defendant in failing to give the usual signals of approach, &c., the plaintiff was entitled to recover. In other words, the negligence of the defendant ⁴⁵³ under such circumstances, was the proximate cause of the injury, and the negligence of the plaintiff was not a concurring and co-operating cause In this case the proof shows that the plaintiff must have attempted to pass between or under the cars, just before or just after they started, and if there was negligence on his part in making this attempt in view of all the circumstances surrounding the case, such negligence must necessarily have been a concurrent and co-operating cause of the injury. The rule therefore of proximate and remote cause upon which the prayer in Trainor’s Case was based, does not apply here. (Decided 6th February, 1874.) We concur in the refusal to grant the fourth prayer.

There is no evidence from which a jury could find that the failure on the part of the defendant to leave an opening of twenty feet between the cars at or near the centre of the square, was the cause of the plaintiffs injury. On the contrary, the proof shows, as we have before stated, that the plaintiff must have attempted to pass between or under the cars, just before, or just after they started, and even if an opening had been left of twenty feet as required by the city Ordinance, such opening must have been closed by the coupling of the cars, preparatory to the moving of tine train. Although the defendant may have been liable to the fine prescribed by the Ordinance for the violation of the same, yet such violation cannot under the facts in this case be said to have caused the injury. The fifth prayer in regard to the measure of damages, states correctly the rule of law on that subject, and ought to have been granted.

For these reasons the judgment below will be reversed and a new trial awarded. Judgment reversed, and new trial awarded. ⁴⁵⁴ Stewart, J., delivered the following opinion : John T. McMahon, a boy some five years and nine months old, having been run over by the car of the defendant, causing him such injury, as to require the amputation of his leg, brought this action through his next friend for the recovery of damages. The five prayers offered by the plaintiff were refused and the two submitted by the defendant granted. The main questions involved are, first,' whether there was proof of the defendant’s negligence, to be submitted to the'jury, and- second, whether there was evidence of contributory negligence, on the part of the plaintiff, authorizing the Court to determine thereon, without the intervention of the jury.

The Court below in granting the prayers of the defendant, determined both questions, without reference to the jury, deciding there was a sufficiency of proof of contributory negligence on the part of the plaintiff, but a