Philadelphia, Baltimore & Washington R. v. Hand

McSherry, C. J., delivered the opinion of the Court. There is one bill of exceptions in the record now before us, and the only questions presented by it for review are the rulings made by the trial Court on the prayers for instructions to the jury. The suit was brought by- the appellee, Sophia B. Hand, against the appellant, The Philadelphia, Baltimore and Washington Railroad Company, to recover damages for a personal injury sustained by the appellee. The facts which need be stated and about which there is no controversy can be briefly set forth; but there is one particular that will be noticed presently in which there is a contest as to a presumption arising from them.

On June the twenty-sixth, nineteen hundred and three, the appellee and her husband purchased from the appellant company’s ticket agent at Havre de Grace round- ²³⁵ trip tickets to Baltimore and return. They went to Baltimore and on the afternoon of the same day they took a train on the appellant’s road in the last-named city to go back to their home. They reached Havre de Grace shortly after five o’clock, p. m. When the train stopped at the station the appellee and her husband arose from the seat which they occupied and proceeded towards the front door of the car to alight therefrom.

There were several persons in advance of them, and the appellee followed closely behind her husband. Whilst the persons in advance of the appellee’s husband were descending the car steps, he passed over to the rear platform of the car immediately in front of the one in which he and his wife had been riding, and descended the steps of that car so as to get on the station platform before the appellee alighted, and so as thereby to be able to assist her in alighting. Before she stepped down from the car platform the train lunged forward some five or six feet and then suddenly stopped, whereby the appellee was thrown from the car platform, down the car steps on to the station platform and, according to the testimony, was considerably hurt and injured. Upon this state of facts the appellee asked eight instructions and the appellant requested the Court to give three.

Ail of the prayers of the appellee, except the eighth, were granted; whilst the first and second of the appellant were also granted. The case then went to the jury and a verdict was returned for the appellee and upon the verdict a judgment was subsequently entered. From that judgment this appeal has been taken. We need not set out the first, second, third and fourth instructions given at the instance of the appellee, because they are almost literal transcripts of those which were granted in the case of Anderson v. P., W. & B. R. R. Co., 72 Md. 519 .

As they were held in that case to be free from objection it is unnecessary to discuss them again. The fifth instruction, however, is obviously erroneous. By it the jury were told that they “were not entitled to presume that the plaintiff was guilty of negligence, but that fact, if relied upon by the defendant, ²³⁶ must be proved by the defendant by preponderating testimony, and if the jury find that if their minds are in a state of equipoise as to whether she was guilty of negligence or not, then in such event they cannot find that she was guilty of negligence.” In the Anderson case there was an instruction to the effect that in order to defeat a recovery on the ground of contributory negligence on plaintiff’s part, the defendant must satisfy the jury by preponderating evidence of two facts; first, that the plaintiff was negligent; and secondly, that such negligence directly contributed to the injury. The same instruction was given in the case at bar.

It is manifest that the fifth instruction is a radical expansion of the principle asserted in the Anderson case. Under the principle there asserted the defendant could rely upon the plaintiff’s own evidence, or the evidence adduced by the plaintiff’s witnesses, to prove contributing negligence; and from that source alone might satisfy the jury of the existence of the two requisite facts above indicated. But under the fifth instruction given in the pending case, contributing negligence, to be available, “must hepioved by the defendant,” even though the plaintiff had conclusively established the fact that it did exist and did directly occasion the injury constituting the cause of action. The instruction introduces a new doctrine in the law of negligence.

Heretofore, certainly in this jurisdiction, and we imagine in every other where negligence is not apportioned, if the plaintiff in making out a case distinctly and clearly showed that his own negligence directly contributed to the ■ happening of the injury which befell him, the defendant was under no obligation to adduce any evidence at all, but might satisfy the Court or jury from the plaintiff’s own showing that contributing negligence barred a recovery. If the-instruction we are now reviewing is