United Railways & Elec. Co. v. Rosik, 68 A. 511 (1908).
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United Railways & Elec. Co. v. Rosik, 68 A. 511 (1908). Book View Copy Cite
The United Railways Electric Company
v.
. Michael Rosik.
Jan 7, 1908.
68 A. 511
Joseph C. France and J. Pembroke Thom (with whom was Arthur L. Jackson on the brief), for the appellant. The appellant contends: (1) That the appellee's first prayer should not have been granted, being a mere abstract proposition of law, and liable to mislead the jury, as it had no application to the facts testified to by the defendant's witnesses; and if the jury had attempted to apply that instruction to those facts — as they probably did — the result would necessarily have been erroneous. (2) That, as there were two distinct and conflicting accounts of the manner in which the accident happend — one that the car started prematurely while the appellee was alighting; the other, that he attempted to alight from a rapidly moving car in the middle of a block — the appellant had the right to have its theory of the case presented to the jury, and the appellant's prayers should have been granted; for, if the appellee stepped from a rapidly moving car in the middle of a block and was injured owing to the motion of said car (there was no claim the motion was unusual), there was no negligence shown on the part of the appellant as a producing cause of the injury; and, in the absence of such negligence, the appellee would have no right of recovery, even if there had been no negligence on his part. (3) That, while the negligence vel non of the appellee is immaterial, there being no negligence on the part of the appellant as a producing cause; still for a man, even if under the influence of liquor (which, it will be remembered, is a self-imposed disability and is no excuse in law for such and act), — to attempt to alight from a rapidly moving car in the middle of the block, is such a glaring act of negligence that the Court should have instructed the jury as a matter of law, that if they found such to be the fact it would bar a recovery. We submit as the law of this Court: (1) That a passenger who undertakes to alight from a moving car and is thereby injured, assumes the consequences of his act unless there is some excuse for not waiting until the car stopped. (2) That \excuse
Briscoe.
\" in this connection
Briscoe, J.,

The plaintiff recovered a judgment in the Baltimore City Court, for personal injuries sustained, while a passenger, on one of the defendant’s cars, in Baltimore City.

At the trial of the case, the defendant reserved three exceptions. Two of these relate to the rulings of the Court upon the admissibility of evidence, and were waived by the appellant in its brief and in the argument in this Court. The third exception presents the ruling of the Court upon the prayers and is the one question for discussion upon this appeal.

The plaintiff offered three prayers, all of which were granted. The defendant’s first, second and sixth were refused, but its third, fourth and fifth prayers were granted as offered. The defendant’s first prayer was granted with certain modifications.

The action of the Court in granting the plaintiff’s prayers and in rejecting the defendant’s prayers, as stated, forms the basis of the third exception and becomes the only matter before us for consideration.

The plaintiff, was a passenger on one of the defendant’s cars on August 22nd, 1905, and was injured while attempting to leave or alight from the car near Lakewood avenue in Baltimore City. He testified that he boarded the defendant’s car at Wolfe and Aliceanna streets, paid his fare, and became a passenger therein, that when the car reached Cannon street, [*143] he notified the conductor to stop at Luzerne street, the car slacked up but did not stop; he asked the conductor why he did not stop the car, the conductor replied, never mind, he then asked him to stop at Lakewood avenue, and the car crossed the steam railroad tracks at Lakewood avenue and stopped. He then got up, caught hold of the bench with his hand, and caught, hold of the handle, put one foot down upon the board, and as he was about to pull the other leg after, the conductor pulled the bell twice, he was thrown off and the car went on. That he was hurt on the knee, leg and thigh, in the chest and shoulders, and is still unable to lift anything with the left hand, that he was taken home and sent for a doctor. He was unable to get out bf his bed for over two months and suffered great pain from the injury.

The testimony'of the plaintiff, as to the cause of the accident was substantially corroborated, by the witness Boloviski who was on the car at the time and saw the accident.

Evidence was offered by the defendant tending to prove that the accident was caused by the carelessness of the plaintiff in attempting to leave the car while in motion, in the middle of a block, at Binney street near Lakewood avenue; that he walked down to the foot board, held on the handle and jumped off the car, while in rapid motion; that he was warned not to do so.

The rule of law bearing upon negligence cases, similar to the one now before us, has been so firmly fixed by the decisions of this Court, that it becomes a mere matter of the application of the facts of the case, than to a discussion of the reasons upon which the rule rests.

The question of negligence both on the part of the plaintiff and defendant, was fairly and correctly presented to the jury, in this case by the plaintiff’s and defendant’s granted prayers upon the facts set out in the record. The plaintiff’s first prayer was properly granted. It submitted the correct rule, as to the degree of care and skill the defendant was bound to exercise for the plaintiff’s safety, as a passenger, on its cars. It has-been approved by a number of cases, in this Court. United Railways Co. v. Beidelman, 95 Md. 483.

[*144] The plaintiff’s second and third prayers were also properly granted, and we do not understand their correctness to be seriously controverted here.

The second prayer is as follows: The plaintiff prays the Court to instruct the jury that if the jury find from the evidence before them that Michael Rosik, the plaintiff, was a passenger upon one of the defendant’s cars, and if they further find that said car came to a full stop to allow passengers to alight, and if they further find that after said car came to a full stop, the said plaintiff, while using due care and caution on his part in the'premises, attempting to alight from said car, and if they further find that said car was started by an agent or servant of said defendant while said plaintiff was in the act of alighting from said car, and that by reason thereof the plaintiff was thrown to the ground and sustained the injuries testified to, then the verdict must be for the plaintiff.

The third prayer, relates to the measure of damages and is' free from objection.

The defendant’s first’ prayer was rejected as offered. It was, however, granted by a modification to the effect: “Provided the jury find that under all the circumstances there was want of ordinary care on the part of the plaintiff.” There was no such error in the granting of this prayer, as modified, of which the defendant can complain. The prayer as offered, was as follows:. “The jury are instructed, that if they find from the testimony that the plaintiff at the time of the accident mentioned, stepped to the foot board of the car while the same was in motion and..before it reached the stopping place, and while on said foot board was thrown into the street by the motion of the car, then their verdict must be for the defendant.

A prayer similar to the one here offered by the defendant, has been condemned, by a number of cases in this Court. In the recent case of United Ry’s. Co. v. Weir, 102 Md. 290, this Court, in approving, the previous decisions on the subject, said: “Whether it be negligence per se for one to attempt to alight from a moving car must depend upon the circumstances of the particular case.”

[*145] In United Ry's. Co. v. Woodbridge, 97 Md. 636, it is also said that the weight of authority is against the proposition that it is always, as matter of law, negligence and want of ordinary care for a person to attempt to get off from a car when it is in motion. Kane v. B. & O. R. R. Co., 69 Md. 27; N. Y., Phil. & N. R. R. Co. v. Coulbourn, 69 Md. 360; Western Md. R. R. Co. v. Herold, 74 Md. 510; Cumberland Valley R. R. Co. v. Maugans, 61 Md. 53; United Ry. Co. v. Hertel, 97 Md. 383.

The second and sixth prayers of the defendant were properly refused because they submitted the same proposition in substantially the same language, as the rejected first prayer, which we have held was clearly objectionable, for the reasons herein stated.

The theory of the defendant’s case we think, was correctly submitted in its three granted prayers, and in the first amended prayer.

The law of the case, was fairly put to the jury by the granted prayers on behalf of the plaintiff and defendant and we find no reversible error in the rulings of the Court thereon. The facts of the cases of Baltimore Consolidated Ry. Co. v. Foreman, 94 Md. 225; State, use of Miller, v. Ihe Western Md. R. R. Co., 105 Md. 30, and other cases relied upon by the defendant, and cited in its brief, were unlike those of this case. They are dissimilar and do not fit the facts of this case. The question of negligence and contributory negligence was one of fact for the jury, to determine under all the evidence, and finding no error in the rulings of the Court, the judgment will be affirmed.

Judgment affirmed, with costs.