United Railways & Electric Co. v. Riley

Thomas, J., delieved the opinion of the Court. Y. Russell Riley, appellee and plaintiff below, who lived at 648 Columbia Avenue, in Baltimore City, when returning from a visit to some friends in Pikesville, late at night on December 15, 1905, got off one of the cars of the appellant at the comer of North and Linden Avenues, to take a John Str'eet car going to Columbia Avenue. It was cold, and he went into a drug store and got some cigars and walked up North Avenue smoking while waiting for his car, but not seeing one and seeing a Madison Avenue car standing near Wegner’s restaurant or saloon, several doors below the corner, he hurried and got on it, and while he was on the rear platform of the car it was struck from the rear by what is called in the evidence a “runaway car,” with no one in charge of it and when running rapidly on the same track in the same direction as the car he was on, and he sustained injuries which necessitated the amputa'ion of one of his legs a few inches below the knee, and this suit was brought to recover for such injuries, The grounds of the defense were that he was guilty of contributory negligence in standing on the platform of the car. and that he assumed the risks to which his position exposed him. The trial resulted in a verdict and judgment in favor of the plaintiff for $10,000.00, from which judgment this appeal was taken.

The record contains three exceptions to the rulings of the Court on the evidence, and one exception to 1he granting of the plaintiff’s two prayers, the rejection of defendant’s first, second, third, fifth, sixth, seventh, ninth, tenth and eleventh prayers, and the overruling of defendant’s special exceptions to plaintiff’s prayers. The only exceptions how ³³⁰ ever relied on and pressed in this Court are the exceptions to the ruling of the Court on the evidence, and to the granting of plaintiff’s first, and the rejection of defendant’s sixth, ninth, tenth and eleventh prayers. Plaintiff testified that: “He ran to get on the car and got on, hut before he could throw his cigar away or get inside, some one jumped on the rear end of the car, and holloaed and pulled the hell and before he knew it there was an awful crash. The car was still when he got- on.

His position was on the hack platform of the car facing the motorman, looking inside the car, about to walk in. He did not have time to throw his cigar away or get inside the car before someone jumped on and holloaed and at the same time rang the bell and before he knew, it there was a crash.” And on cross-examination he said he ran back of the car and got on because it was the last car that night going down, and that he still had the cigar with him; that he didn’t' have time to take any position, and had just gotten on the car, was standing facing—-“I was looking inside the car;” that he was standing on the platform looking inside the car; that he guessed he was smoking; that he could not tell how many people were in the car; that he saw the conductor, who was standing up in the front part of the car; that no one else was there that he knew of; that the conductor was not on the back platform or at the hack door; that he did not have time to see how many people were in the car, which was not crowded, and that “he guessed there was plenty of room inside.” That he had been around cars a good deal in Baltimore for ten years, but never knew of any notice or sign in the cars warning people against standing on the platform because it was dangerous, and that “those so doing assumed the risk,” hut that he had seen signs prohibiting smoking inside the car, and that he knew how to read. That he didn’t know whether it was Rosenheim who holloaed, but that somebody holloaed, and at the same time jumped on and pulled the bell; that “everything was all confusion at the time,” and that he, plaintiff, was “about opposite the door then, about going in ³³¹ side the ear,” and that he knew nothing about the runaway car until it struck the car he was in. Plaintiff’s witness, TIerford, says that the car plaintiff Avas on Avas standing on Madison AAnnue, in front of Wegner’s Saloon, the fourth door from the northeast corner of Madison and NTorth AA’enues, and that he saw someone get on the car ahead of the plaintiff who went inside the car, and was about to take his seat Avhen the accident happened; that the conductor was in the front part; of the car, and had something in his hand, and witnesss thought he Avas Avriting; that he saAV the runaway car pass the northwest corner, and saAv plaintiff on the platform of the car that was struck; that he saw a man who came out of Wegner’s saloon, get on after plaintiff, and that after witness holloaed he jumped off.

That plaintiff could have gotten inside the car and taken a seat; that Rosenheim got on the car a few minutes after plaintiff; that plaintiff Avas standing on the left hand side of the platform of the car facing the motorman; that witness holloaed lond, and Rosenheim, the man who got on the car after the plaintiff, jumped off hut he could not say positively how long Rosenheim Avas on the car before he jumped off; that he imagines that it was not more than a couple of minutes “if it was that much,” it was a very short time. Plaintiff’s witness, Zimmerman, stated that he came out of Wegner’s saloon and saw a car coming down Madison Avenue which stopped, and that he stepped on the car and at. the same time plaintiff got on the car. That he, witness, Avent inside the car, and as he was about to take a seat on the right side he looked around and saw plaintiff standing on the left hand side of the rear platform, holding on to the rail; that the conductor was in the front part of the car writing something in a little book, hut that there was no one else in the car, and that about half a minute later he heard some one jump up on the car and ring the hell, and he saw him jump off again, and that then the crash came, and witness found himself in the front part of the car where the conductor was; that the car that he was on was at a standstill when he got on ³³² it, and. after it was struck it went to about the middle of the square; that there was plenty of room inside the car, and that it was probably half a minute after the plaintiff got on the car before Rosenheim got on the car and pulled the bell, and that in the meantime plaintiff was standing on the platform holding to the rails, but that he “didn’t know whether he was smoking or not.” Plaintiff’s witness, Brenner, stated that he and Rosenheim came out of Wegner’s saloon; that Rosenheim was waiting to go downtown, and he was going east on North Avenue; that they saw the car coming, and Rosenheim left him on the south side of the street, and he presumed he got on the car, and witness had gotten “diagonally across” Madison Avenue when he heard a shout, and looking back saw plaintiff standing on the platform and Rosenheim pulling bell rope, and before he could realize what happened, he saw another Madison Avenue car coming and there was a crash which carried both cars as far as the middle of the block; that the crash come immediately after pulling of the bell and the car was either still or had very little headway. That after the accident the platforms of the two cars were apparently smashed, and there was a tangle of the iron grating and the brake, “and plaintiff was down amongst them.” The plaintiff produced other witnesses whose testimony was to about the same effect as the evidence above stated, from which the jury could have found that at the time of the accident the car on which plaintiff was injured was either standing still or had just started, and that plaintiff was standing on- the rear platform of the car; that there were very few people in the car; that the plaintiff had an opportunity to go inside the car, and that if he had done so, instead of remaining on the rear platform, he would not have received the injuries for which he now seeks to recover.

Defendant proved by its witness, Glenn, that he was conductor on one of the defendant’s cars and saw the accident in which the plaintiff was injured; that he had been at work on the street cars for fourteen or fifteen years previous to the ³³³ accident; that he took the car plaintiff was on from the place of the accident hack to the barn; that that car and all other cars of the defendant had posted on them a sign forbidding people to ride on the steps or rear platform of the car, and stating that those who did so did it at their own risk; that these notices had on them, in big red letters at the top, the word “Warning.” Plaintiff’s first prayer is as follows: “If the jury believed that the plaintiff was a passenger on one of the defendant’s cars, and whilst being carried therein was injured by a collision between that and another of defendant’s cars while moving on the same track, then the presumption is that the injury resulted from the negligence of the defendant, and the plaintiff is entitled to recover, unless the defendant shows that said injury did not result from its negligence or that the accident could have been avoided by the exercise of ordinary care on the part of the plaintiff.” By this instruction the jury were told that if they found the facts stated in the prayer, the plaintiff was entitled to recover unless the defendant showed either that the injury did not result from its negligence, or that the accident could have been avoided by the exercise of ordinary care on the part of the plaintiff. In other words, that the jury, in determining whether the inj nry resulted from the negligence of the defendant, or the accident could have been avoided by the exercise of ordinary care by the plaintiff, were confined to the evidence produced by the defendant. As was said in the case of Lewis v. B. & O. R. R. Co., 38 Md. 588 : “The question in this and in all cases of the like kind is whether the injury complained of was caused entirely by the negligence or ■improper conduct of the defendant, or whether the plaintiff so far contributed to the same by his own negligence or want of ordinary care and prudence, that, hut for such negligence or want of care and prudence, the injury would not have happened. In the first case, the plaintiff would he entitled to recover—in the latter he would not, unless the defendant, by the exercise of care and prudence. ³³⁴ might have avoided the consequences of the plaintiff's negligence." While an injury may be sustained under such circumstances as, when shown, give rise to the presumption of negligence on the part of the defendant, the testimony adduced to show these circumstances, may also disclose such evidence as will justify the Court in saying, or the jury in finding, that the plaintiff was guilty of such contributory negligence as defeats his right of recovery.

Without meaning to say as a matter of law that the testimony produced by the plaintiff shows that he was guilty of contributory negligence, it does contain evidence from which the jury copld have found that the plaintiff had the opportunity to go inside the car, and that, instead of doing so, he remained on the platform, and that under the circumstances disclosed by this evidence he was negligent, and that but for such negligence on his part he would not have been injured. Notwithstanding the jury may have so found, yet under the instructions contained in the plaintiff’s first prayer, they were required to find for the plaintiff, unless the defendant-showed that the injury did not result from its negligence, or that it could have been avoided by the exercise of ordinary care on the part of the plaintiff. In the case of Phil., B. & W. R. Co. v. Hand, 101 Md. 233 , this Court, in condemning a prayer which told the jury that they “were not entitled to presume that the plaintiff was guilty of negligence, but that fact, if relied upon by the defendant, must be proved by the defendant by preponderating testimony,” said: “Contributing negligence will defeat a plaintiff’s action. It can, therefore, malee no possible difference whether that negligence is proved by the plaintiff or by the defendant.

It is its existence, and not the party by whom its existence is proved, that is material. It is the thing itself that defeats the action, and not the mere accident that it happens to be proved by the one or the other of the opposite parties. It is just as complete a bar to the action when its pres ³³⁵ ence is revealed in the evidence introduced by the plaintiff, as it is when disclosed in the testimony adduced by the defendant. Inasmuch, then, as the negligence of the plaintiff directly contributing to the happening of the injury sustained, bars a recovery, it would seem a priori to follow, that it is absolutely of no consequence by which party to the suit that negligence is proved.

Consequently it was error to instruct the jury that to be a defense such negligence must be proved by the defendant.” Appellee’s counsel cites and relies upon the case of N. Balto. Pass. Ry. Co. v. Kaskell, 78 Md. 517 , where a similar prayer was approved by this Court.

While plaintiff’s first prayer in Kaskell’s Case does conclude by requiring the defendant to