State ex rel. Harvey v. Baltimore & Ohio Railroad

Stoííb, J., delivered the opinion of the Court. This is an action against the Baltimore and Ohio Railroad Company for neglig’ence in causing the death of the wife of the equitable plaintiff. After all the testimony had been given the Court instructed the jury that the plaintiff was not entitled to recover because the evidence of the plaintiff showed that the deceased directly contributed to the accident that caused her death. The Court refused a modification of this prayer offered by the plaintiff, and also, as the exception states, refused to consider while acting on said prayer, any evidence favorable to plaintiff elicited through defendant’s witnesses.

In this we think the Court below erred. At the close of the plaintiff’s evidence, if the defendant thinks that the evidence of the plaintiff is not legally sufficient to support the action, he has the right to ask and have the ruling of the Court upon it. In suich case there is nothing before the Court except the plaintiff’s testimony. But if the whole evidence, both of plaintiff and defendant, is in before such instruction is asked for, the whole evidence must be considered by the Court, and not that of the plaintiff only.

The reason of this is obvious. The evidence offered by the defendant may, and often does, supply a defect in the proof of the plaintiff When, therefore, an instruction is asked that takes the case away from the jury, after the whole evidence is before the Court, before such instruction is either granted or refused, the whole evidence must be considered by the Court, and the ruling based upon that, and not confined to the evidence of plaintiff. But while the Court below was in error in granting the prayers, confining, as it did, its consideration to ³⁴⁴ plaintiff's proof only, sucli error will not authorize a reversal of the judgment if it appears that upon the whole proof the plaintiff was not entitled to a verdict. Before then we can determine whether this case shall he sent hack for a new trial, we must examine the proQf and see whether there is enough in it to authorize its submission to a jury.

Before we can do this we must take all the evidence favorable to the plaintiff and assume its absolute verity. Where the facts are undisputed, or where but one reasonable inference can be drawn from them, the question is one of law for the Court; but where the facts are left by the evidence in dispute, or where fair minds might draw different conclusions from them, the case should go to the jury. Thompson on Negligence, 1179. There is no other question presented to us by the exception, hut the question of whether this case should be left to the jury or not, and to determine that we must be governed by the aforegoing rule, or as it is said in Balto. & Ohio Railroad vs. Fitzpatrick, 35 Md., 32 , there must be some prominent-and decisive act in regard to the character of which there is no room left for ordinary minds to differ, before the Court will hold it to he a question of law for the Courf, and withhold the case from the jury.

Mrs. Harvey, the wjfe of the equitable plaintiff, was killed by an engine of the defendant while she was crossing Ohio Avenue in Baltimore City. She attempted to cross that avenue in full view of an engine moving toward her and stumbled, and fell upon the track, and the engine ran over her while she was down. We have said in the case of Baltimore and Ohio R. R., Co. vs. Mali, 66 Md., 53 , that a person who attempts to cross a railroad track in view of an engine moving toward him, and not more than twelve feet from him, , wa's guilty of contributory negligence as a matter of law. ³⁴⁵ While that was the distance from the engine that the plaintiff in that case attempted to pass, and therefore was applicable to that case, it is evident that no inflexible rule can be laid, down as to the distance before a moving train, within which it is safe to attempt a crossing. It will depend upon the rate of speed at which the train is moving, and the condition of the person.

Each case therefore must measurably depend upon its own peculiar facts. It might be clearly negligent in a cripple to attempt to cross a track five hundred feet before an express train moving at the rate of forty miles ;an hour, but not so in an active person attempting the same thing one hundred feet before a yard engine moving four miles an hour. There are some contingencies always liable to occur to persons attempting to cross a railroad in front of a moving train. ' One of these is the possibility of an increase in the rate of speed of the train, and another is the liability of the person to stumble or fall. The road in the prosecution of its legitimate business has the right to slacken or increase its speed, and may do so at any moment.

The liability of a stumble and fall is sadly illustrated in this case. Ho such crossing should be attempted unless some allowance is made for these