Baltimore City Passenger Railway Co. v. McDonnell ex rel. McDonnell

GriiASON, J., delivered the opinion of the Court. At the trial of this case in the Court below, three exceptions were taken, the first to the admission in evidence of the ordinance of the Mayor and City Council of Baltimore, regulating the speed of the appellant’s cars on the route on which the plaintiff was injured ; the second to the refusal of the Court to permit to be offered to the jury, the declaration of the father of the plaintiff, that the in — 550 — jury to the plaintiff “was the result of an accident, for which the driver of the car was not to blame,-” and the third to the granting of the three first prayers of the plaintiff, and the rejection of the first, third, fourth, fifth, sixth and seventh prayers of the defendant. 1st Exception. — The admissibility of the ordinance of the Mayor and City Council was objected to, on the alleged ground, that no evidence had been offered, that the car was running at a speed exceeding six miles an hour at the time the accident happened. One witness had testified that she did not know at what speed the car was running, but that it was running faster than ordinarily, and that a man would have to run very fast to keep up with it. Another testified that she did not see the car coming, but heard it, and, from the sound of the bells, she thought it was coming at full speed. From this proof, it was competent for the jury to determine whether or not the car was running at a rate of speed exceeding six miles an hour, and it sufficiently laid the foundation for the introduction in evidence of the City ordinance. But even if the foundation was not thus sufficiently laid, and the Court erred in permitting the ordinance to be offered in evidence at that stage of the trial, the defendant was not injured by the ruling of the Court, because Mules, the driver of the car, after-wards swore that, he had to make four miles in thirty-eight minutes, without making allowance for stoppages; so that it appeared that the average rate of speed of the car was more than six miles an hour, and the ordinance would have clearly been admissible after such evidence had gone to the jury. 2nd Exception. — McDonnell, whose declaration was not permitted to go to the jury, was not preseht when the accident occurred, saw nothing of it, and had no knowledge of the particulars of the accident, further than information derived from others, and any declarations he may have made, must of necessity have been based exclu — 551 — sively upon information derived from others, aud were not admissible evidence to affect the interest of, or bind, the plaintiff. The declaration offered, was made by a person having no legal interest in the suit before the suit was commenced, and without any knowledge of the transaction, other than what was derived from other persons. Such a declaration stands upon the same footing with declarations made by a person, to whom letters of administration are afterwards granted, which are not admissible in evidence against him as administrator. Mangum vs. Webster & Baynes, 7 Gill, 81; Dent’s Adm’x vs. Dent, 3 Gill, 482. 3rd Exception. — The questions of law involved in the prayers of the plaintiff, which were granted, and those of the defendant, which were rejected, have frequently been before this Court for adjudication. Whatever may have'.' been the decisions elsewhere, in this State it is now well j| settled law, that if an injury results directly from the { want of ordinary care and prudence, on the part of the } defendant or its agents, and not from the want of such ]| care and prudence on the part of the plaintiff as ought, j¡ under all the circumstances, to have been expected from one of his age and intelligence, or from want of ordinary care and prudence on the part of his parents, dhuctlymontributing to the accident, the plaintiff is entitled to recover. | This Court has also distinctly recognized the rule that a child, so far as he is personally concerned, is to be held only to such degree of care, as ought to be reasonably expected from children of his age and intelligence. Fryer’s Case, 30 Md., 47; McMahon’s Case, 39 Md., 451, 452. Nor will the plaintiff be prevented from recovering, in consequence of the negligence of its parents, if the jury shall find that the consequences of such negligence could have been avoided by the exercise of ordinary care and prudence, on the part of the defendant or its agents. This principle has been announced by this Court, in the — 552 — cases of Frech vs. The Phila., Wil. & Balt. R. R. Co., 89. Md., 575; North. Cent. Railway Co. vs. Price, 29 Md., 420; North. Cent. Railway Co. vs. Gies, 31 Md., 357; Lewis vs. Balto. & Ohio R. R. Co., 38 Md., 588; McMahon’s Case, 39 Md., 52, and Fitzpatrick’s Case, 85 Md., 44. The principles announced by this Court in the above cited cases have been exactly followed by the plaintiff’s first and third prayers, and they were therefore properly granted. The defendant’s prayers, which were rejected, assume as matter of law that if there was negligence on the part of the parents of the plaintiff, or on the part of the plaintiff herself, without regard to her age and intelligence, that the plaintiff is not entitled to recover, notwithstanding the jury may have believed that the accident could have been avoided by the exercise of ordinary care on the part of the driver of the car. For this reason they were properly rejected. The plaintiff’s second prayer was specially excepted to on the ground of there being no evidence to show that the car at the time the accident occurred, was running at a greater speed than six miles an hour. We have shown, in considering the first exception, that there was evidence before the jury tending to prove that the car was running at a speed greater than was allowable under the City ordinance, and the defendant was certainly guilty of negligence by so running its car, if the jury believed from the evidence that the accident could have been avoided if the car had not been running at greater speed than six miles an hour. There was no error therefore in granting the plaintiff’s second prayer, especially when taken in connection with the defendant’s ninth prayer, which was granted. It was contended by the counsel of the defendant that, if the driver saw that the railroad track was clear and no one upon it, he had performed all that ordinary care and prudence required of him, and it was not for him to sup — 553 — pose that any one would put himself in the way of the ear, by attempting to cross in front of it. In a large populous city where all descriptions of vehicles are constantly passing and repassing, as well as persons on foot, including the aged and infirm as also children who are young and wanting in prudence and discretion, it is the duty of drivers of cars not only to see that the railroad track is clear, but also to exercise a constant watchfulness for persons, who may be approaching the track. Unless he does so he does not exercise that ordinary care and prudence, which the law imposes upon him. In this case there is proof tending to show that instead of exercising such watchfulness, his attention was occupied by a young lady standing in the door of a house on the opposite side of the street from that from which the plaintiff was approaching. (Decided 29th February, 1876.) Finding no error in the rulings of the Court below, the judgment appealed from will be affirmed. Judgment affirmed.