Northern Central Railway Co. v. State ex rel. Geis

Alvey, J., delivered the opinion of the Court. That a party will act with due care, both with reference to his own safety, and the safety of others, is a natural presumption to be indulged in all cases, until overcome by proof to the contrary. Hence it was not error for the Court below to instruct the jury in this ease, as was done by granting the third prayer of the plaintiff, that in considering the question of negligence, it was competent, in connection with' all the facts and circumstances of the case, to infer the absence of fault on the part of the deceased from the known disposition of men to avoid injury to themselves. Objection is taken to the form of the prayer, and to its being liable to misconstruction by the jury. But we must construe it with reference to the facts of the case, and it appears that the evidence was conflicting, tending to create doubt as to whether the deceased was in fault in bringing upon hirfiself his misfortune. There may be [365] cases in which such an instruction would be objectionable, as where there is positive, unconflicting proof of the negligence of the party injured. In such cases an instruction of the character and form here given might mislead the jury, and for that reason should not be granted. But such was not the character of this case, and we think the instruction proper. The plaintiff’s fourth prayer was properly rejected as offered, and it is not perceived with what propriety it was granted with the modification affixed to it by the Court. There was no evidence showing, or tending to show, that the accident was occasioned by the act or from the fact of violating the City Ordinance by the defendant, even if it be conceded that the car in which the deceased was injured, occupied at the time, a forbidden place on the street. The whole subject of this instruction was apart from the real questions involved in the case, and, therefore, calculated to mislead the minds of the jury, and should have been withheld from them. The Court was in error, therefore, in granting this fourth prayer as modified. As to the other instructions by the Court, we think they were not calculated to evolve and place before the jury the true questions arising in the case. In the first part of these instructions, it was assumed that the question of remote and proximate cause of the injury was involved, and they were framed with a view to instructing the jury upon that rather intricate and difficult question. But, according to our view of the case, no such question was really involved, and the minds of the jury should not have been perplexed with it. In Price’s case, 29 Md., 420, the rulings in which are supposed to govern this, a different state of facts existed from those appearing in this record, and questions arose and distinctions were taken there that do not apply here. There, from the nature of the case, the question as to the remote and proximate cause of the death arose. But here, ac [366] cording to the proof of the nature of the accident, if negligence he imputable to both parties in reference to the injury, it must have been concurrent, and co-operated to produce the injury complained of. And in such case no action would lie ; for it would be impossible to apportion the damages, or to exactly ascei’tain how much each party contributed, by his negligence, to the production of the injury. It is true that, in some cases, there may be negligence in both parties concerned, and yet an action may be maintained ; but in such cases it must appear, either that the defendant might, by a proper degree of caution, have avoided the consequences of the injured party’s neglect, or that the latter could not, by ordinary care, have avoided the consequences of the defendant’s negligence. This, however, implies time for the one party to become aware of the conduct and situation of the other, for neither could be required to anticipate the other’s negligence. But where there is a concurrence of negligence of both in the production of injury to one of the parties, the causes are commingled, and are regarded as equally •proximate to the effect produced, and, therefore, not susceptible of apportionment. And if it be true that the deceased was guilty of negligence, it must, from the nature of the accident, have been of this latter character. In the latter part of the instruction before us, the jury were told that if they should find that the negligence which produced the accident was mutual, and they could not impute to each party his own proper share in the commission thereof, then they were to find for the defendant. This assumed that the jury were at liberty to undertake the-task of doing what the law has determined cannot be done, that of ascertaining the share of negligence that each party contributed to the production of the injury, though the contribution was mutual and concurrent.. This was clearly erroneous; and we think, for the reasons [367] assigned, that exception was well taken to the instruction of the Court. (Decided 23d November, 1869.) As to the defendant’s prayers embraced in the exception, we think the Court was right in rejecting the first of them. Apart from the objection that it would appear to require it to be proved affirmatively, as a condition to the right to recover, that the deceased did not, by his own neglect or want of care, contribute to the accident, it fails to define what character of neglect or want of care would exclude the right to recover. To defeat the right on such ground the deceased must have been guilty of some want of ordinary care and prudence, which directly contributed to the injury. To put the question to the jury, as was sought to have been done by this prayer, without thus defining the degree of neglect that would defeat the action, might lead to wild speculation as to what constituted contributory negligence. We discover, however, no objection to the defendant’s second prayer, and think it ought to have been granted. It states a proposition that is sustained by all the cases upon the subject. We shall therefore reverse the judgment of the Court below, and award a procedendo. Judgment reversed, and procedendo awarded.