Philadelphia, Wilmington & Baltimore Rail Road v. Harper

Bartol, C. J., delivered the opinion of the court. ■ In this case the court below rejected the prayers offered on both sides, and gave two instructions to the jury. To this ruling, both parties reserved exceptions, and both have appealed; but, as the plaintiff recovered judgment, and does not ask for a reversal on her appeal, and as we have come to the conclusion the judgment must be affirmed, it is only necessary to express our opinion upon the questions presented by the defendant’s appeal. These arise upon the defendant’s prayers and the court’s instructions to the jury. It is the settled law of this court, that it is competent for the court below to reject the prayers offered and grant instructions to the jury in its own language, and where these are correct, and cover the whole ground, the judgment will not be reversed, though some of the prayers might have been properly granted. Mut. Safety Ins. Co. v. Cohen, 3 Gill, 459; Hall v. Hall, 6 G. & J. 404; Keener v. Harrod, 2 Md. 63, 73, 74; N. Y. Ins. Co. v. Flack, 3 Md. 341; Baltimore v. Penington, 15 Md. 12, 17. It is also well settled that an appellant is not entitled to ask a reversal where no injury has been done him by the action of the court below. In this case, the material propositions presented in the defendant’s prayers were substantially granted in the court’s ^instructions to the jury. By those instructions the Rail Road Company was exempted from all responsibility for damage caused by the public enemy; its liability for the safe transportation of the plaintiff’s baggage was confined to the limits of its own road, and it was held bound only for the safe and prompt delivery to the agents of the connecting company on the line of travel. And the defendant got the benefit of exemption from all liability beyond the sum of one hundred dollars, unless the jury should find from the evidence the loss occurred from the want of ordinary .care on the part of the defendant. Whether the court below was correct in allowing to the defendant the benefit of these limitations upon its liability as a common carrier, we express no opinion; the defendant has no right to complain of them on this appeal. It is proper to notice the particular points made by the appellant’s counsel in the'argument. The court’s instruction imposed the duty .upon [340] the defendant to prove that the baggage in question had been delivered “ with all possible dispatch ” at the terminus of its road, to the agents of the connecting company. It has been objected that the words, “ all possible dispatch,” imposed upon the defendant a greater responsibility than the law requires. But this is the measure of responsibility assumed by the defendant itself. In its first prayer, the instruction asked was in these words, “ safely and with all possible dispatch,” and the court having instructed the jury in this particular, in the terms asked for by the defendant, it is precluded from now making this objection. In Baugher v. Wilkins, 16 Md. 35, it was decided that an instruction granted by consent cannot be objected to in the appellate court. .The same observation may be applied to the objection made by the appellant’s counsel, to that part of the instruction which left it to the jury to find whether the loss was occasioned by the “ want of ordinary care on the part of the defendant,” which it is sáid was too vague and indefinite. But in this respect, too, the instruction adopted the very language employed in the defendant’s second prayer. *The first, second and sixth prayers of the defendant being substantially granted by the court’s instruction,' the appellant cannot complain of their rejection. The third prayer was properly refused because it contained the hypothesis that the loss of the trunk was occasioned by its having been temporarily in the possession and control of persons not connected with the defendant or in its service — of which there was no evidence before the jury. The fourth and fifth prayers were properly refused for a similar reason, there being no evidence that the trunk was safely delivered by the defendant to the next carrier on the line of travel. Under the decision in Balt. St. Packet Co. v. Smith, 23 Md. 402, the onus'of proof of such delivery was on the defendant. There was no error in refusing the defendant’s seventh prayer. The proper place for the plaintiff to demand her trunk was at New York, the end of her journey, to which place she had taken her tickets, and had her baggage checked. She was not bound to look after its safety during the route. The evidence shows that a demand was made by her in New York, and the trunk having been lost, the [341] responsibility for its loss rested up'on the defendant, especially in the absence of proof of a safe transportation over its road, and a safe and prompt delivery to the agents of the next carrier on the route. 23 Md. 402. This was the purport of the court’s instructions, and the defendant has no good ground to complain of the action of the court below; the judgment will, therefore, be affirmed. Judgment affirmed.