Baltimore City Passenger Railway Co. v. Wilkinson

Baiitol, C. J., delivered the opinion of the Court. Since the decision of the case of Leopard vs. The Chesapeake and Ohio Canal Co., 1 Gill, 222, followed by Stockton vs. Frey, 4 Gill, 406, and by a number of other cases, all recognizing the same rule, it must be considered as settled that where a prayer is asked, or an instruction is granted to — 230 — a jury upon the evidence or facts in the cause merely, without reference to the pleadings, the appellate Court is precluded by the Act of 1825, ch. 117, (Code, Art. 5, sec. 12,) from considering the state of the pleadings. But it has always been competent for a party by a prayer properly framed, to call the attention of the Court to the pleadings, and to ask its judgment upon their sufficiency or legal effect; the rule being that every suitor must recover according to the allegata and probata. Berry vs. Harper, 4 G. & J., 467; Bull vs. Schuberth, 2 Md., 57; Burgess vs. Lloyd, 7 Md., 199; Busby vs. Conoway, 8 Md., 55. In this case the declaration contains five counts; and the appellant, the defendant below, by several prayers directed to that end, called on the Court to pass judgment upon the legal sufficiency of each of the counts; if any of them were insufficient, it was error to reject the defendant’s prayers raising that question. But it does not folloAv necessarily that such error would be cause for a reversal of the judgment, it being well settled that a judgment will not be reversed, unless it appears by the record that the appellant has been, or may have been, injured by the ruling of the Court below. Ramsay, et al. vs. Glass, 9 Gill, 56. To apply this rule to the present case, it is obvious, if there is one good count in the declaration, the question of the sufficiency of the other counts would not be material, and although they were not good in law, the defendant could not be injured by the refusal of the Court so to pronounce. The plea to all the counts being the same, “that the defendant did not commit the wrongs alleged,” which is equivalent to the general issue of “ not guilty.” If there be one good count in the declaration, the judgment would not be reversed, because the othex-s might be insufficient. Code, Art. 75, see. S. In our opinion the fifth count of the declaration in this case, states a sufficient cause of action; it is not material, therefore, to express any opinion upon the sufficiency or insufficiency of the other counts. — 231 — In disposing of the case, we shall confine our attention to the instructions given by the Court below to the jury, and to to the third, fourth, fifth, sixth and seventh prayers of the defendant, which were refused. To understand more clearly the material questions in the case, it seems to be necessary to state somewhat in detail the facts disclosed by the evidence. The suit was brought by the appellee, to recover damages for an injury suffered by him, through the alleged negligence of defendant’s agent. The defendant is a corporation engaged in the business of running upon the streets of Baltimore, railway cars drawn by horses, for the transportation of passengers only. The proof shows that no baskets or parcels are allowed to be carried separately from the person of a passenger, but passengers have the privilege of carrying moderate parcels with them on the cars, paying a small additional fare when any unusually large parcel is carried. It appears from the evidence that about 9 or 10 o’clock at night, when one of the passenger cars of the defendant, drawn by one horse, was proceeding on its regular route, the plaintiff who was on the street returning from, market with Ms wife, ran forward with his market basket in his hand and called the driver who stopped the car; when the plaintiff got on the front platform, placed his basket thereon and asked the driver to be so kind as to take it, to which the driver assented, the car was started immediately and the plaintiff, as testified by himselfj was thrown off the car and injured; or according to other testimony in attempting to get off the car while in motion, fell and was injured. The evidence shows that the plaintiff did not intend to continue on the car as a passenger, but his purpose in that regard was not communicated to the driver; his testimony was, that it wras the intention of his wife to get in the car as a passenger; there is no evidence however that such intention was made known to the driver, or in any manner indicated to him by any visible movement on her part, she being left — 232 — behind at some distance from the plaintiff, when he deposited the basket on the platform of the car. The evidence showed that by one of the regulations of the railway company, intended for the safety of passengers, persons using the cars are prohibited from getting on or off at the front end of any car; but are required to enter and descend by the rear platform only, and that notice of such regulation is put up inside of all the cars legible by all who enter them. There was proof that the plaintiff had often ridden in the cars, from which it0 might be inferred that he had notice of the regulation of the company in that respect. Upon this state of facts the defendant relied on several grounds of defence. By the sixth prayer the Court was asked to say that the regulation, that passengers shall not get on or off any car by the front end is a reasonable one, and if the plaintiff knowingly violated said regulation, it was conclusive evidence of negligence on his part, and if he were injured in consequence thereof he was not entitled to recover. The third prayer of the defendant presented substantially the same proposition. The ground upon which rests the responsibility of railway companies for the safe carriage of passengers, is that of contract ; while the law casts upon the company the obligation of providing safe _ means of transportation and of employing skilful and competent agents, and it is responsible for the consequences of any failure or omission in this respect, as well as for the negligence of its agents, there is a mutual obligation imposed upon the passenger to observe the reasonable regulations of the company in entering, occupying and leaving the cars; and if a party be injured in consequence of a known violation of such regulations, unless compelled thereto by «orne existing necessity beyond his control, it is a breach of the contract on his part, and the company is not responsible. The Pennsylvania R. R. Co. vs. Zebe, 33 Pa., 318. In such case the question of negligence on the part of — 233 — the passenger is a legal question for the Court to decide, and the defendant below was entitled to ask an instruction to the jury exempting it from liability upon their finding the facts stated in the third and sixth prayers. Unlike the case where the facts from which negligence is to be inferred are controverted, or are numerous and complicated, and Ayhen no certain legal rule or standard can be laid down, and in which the question of negligence is necessarily one to be submitted to the jury. Here the legal duty imposed upon the plaintiff is clear and well defined, and the failure on his part to perform it if found by the jury would constitute negligence in law which would debar him from the right to recover. For these reasons we think the Court below erred in refusing the third and sixth prayers of the defendant. The fifth prayer of the defendant ought also to have been granted; because there was no evidence in the cause, that the driver had any knowledge of the purpose of the plaintiff’s wife to get on the car as a passenger; nor any evidence to charge the defendant by reason of such purpose or intention on her part. The fourth prayer of the defendant assumes as part of its hypothesis, that the regulation of the company by which the driver was prohibited from carrying a basket unless accompanied by a passenger was known to the plaintiff, of Avhich there was no evidence; and for that reason was properly refused. In other respects that prayer would have been free from objection. For the same reason the seventh prayer of the defendant was also properly refused. The instruction given by the Court to the jury was erroneous in several particulars. 1st. It submitted to the jury to find that the plaintiff got upon the platform of the car by the driver’s permission. It being contrary to the regulation of the company for him to get on the front platform, if that was known to him he would — 234 — have no legal right to violate it, and the company would not be bound by the act of the driver in giving him such permission. (Decided 9th March, 1869.) 2d. It submitted to the jury to find that the plaintiff’s wife was following him with the intention of obtaining a seat in the car as a passenger. Without some knowledge brought home to the driver of such intention, of which as we have said there was no evidence, the company would not be chargeable on account thereof. 3d. It ignored altogether the effect of the regulation of the company, forbidding persons from entering or leaving the cars except by the rear platform, and the consequences to the plaintiff of violating that regulation with notice thereof, of which there was evidence. For these reasons the Court’s instruction was erroneous. . The second prayer of the defendant which was granted and embraced in the Court’s instruction, properly stated the law in denying to the plaintiff the right to recover, if his injury resulted in any degree from his own negligence. Such a general instruction submitted the whole question of negligence to the jury. But as we have before said, in a case like this where there was evidence of a breach of legal duty on the part of the plaintiff, causing the accident, which would constitute negligence in law on his part, the defendant was entitled to have specific instructions to the jury on that subject, and the Court having erroneously refused to grant them; we cannot say such error was cured by an instruction, leaving to the jury in general terms, the question of negligence on the part of the plaintiff, without any specific rule to guide them in forming their verdict. The judgment of the Superior Court must be reversed, with leave to the appellee to have a writ of procedendo. Judgment reversed with leave to the appellee to have procedendo.