Klipper v. Coffey

Brent, J., delivered the opinion of the Court. The question, presented by the first and second exceptions in this case, is one of contributory negligence. It arises upon two prayers, asking the Court to instruct the jury that the evidence discloses such contributory negligence on the part of the plaintiffs, as will prevent them in law from any recovery of damages for the injury set forth in their declaration. The appellants, it seems, are the owners of a furniture wagon, used by them to convey articles of furniture to and from their warehouse. On the day when the accident happened, which, it is claimed, caused the damages complained of, the wagon in question was engaged in carrying furniture from the Northern Central depot to the warehouse of the appellants on South Calvert Street. In so doing, it had to pass, in its direct route from the depot, through Monument Square the place of the accident. — 127 — The appellees are the owners of carriages kept for hire, and on the same day were on the stand, assigned for such carriages in Monument Square, with their carriages. As the wagon of the appellants came near the place where one of the carriages of the appellees was standing, a part of the furniture loaded upon it fell off with a loud crash, causing the horses of the appellees to run off. The driver at the time was not upon his seat, but was some distance off. lie ran up however, and catching one of the horses by the bridle succeeded in stopping them, but not in preventing injury to both carriage and horses. The appellants, after this evidence had been introduced on the part of the appellees, called the attention of the Court to one of the ordinances of the City of Baltimore, page 90, sec. 14, of Baltimore City Code, and thereupon asked the Court to instruct the jury : “ That the conduct of the plaintiffs as disclosed by the testimony was such contributory negligence in law as to bar a recovery on the part of the plaintiffs, though a want of ordinary care should be proved on the part of the defendants in the management, loading and driving of their wagon as it is charged and set forth in the plaintiffs’ narr. ’ ’ This instruction the Court refused to give, and it forms the first exception. Although the appellee may have been in violation of the ordinance referred to, by not being as near his carriage and horses as the ordinance requires, it by no means follows, as a matter of course, that his conduct contributed directly to the injuries complained of. Because a plaintiff is himself negligent or is acting in violation of a law, lie is not therefore prevented from recovering damages for an injury, which has resulted from the negligence of a defendant, where but for the want of ordinary care on the part of the defendant the misfortune would not have happened. In the case of Davies vs. Mann, 10 M. & W., 545, referred — 128 — to in Northern Cen. R. R. Co. vs. Price, 29 Md., 432, where a fettered donkey was turned by his owner upon a public highway and injured by a 'passing wagon, the Court held, that though the act of turning him upon the highway in that condition might be illegal, yet if the jury thought the accident might have been avoided by ordinary care on the part of the driver, they must find for the plaintiff. In the case of The Baltimore & Ohio R. R. Co. vs. State, use of Trainor, 33 Md., 554, it was held that the appellees could maintain their action because of the want of ordinary care on the part of the agents of the Railroad Company, although the party killed was negligently and wrongfully on the railroad track when the accident occurred. The same doctrine is found in the later case of The Balto. & Ohio R. R. Co. vs. State, use of Dougherty, 36 Md., 366. Numerous other cases might be cited to the same effect, but the doctrine is now too well settled to be doubted. In the case of Steele vs. Burkhardt, 104 Mass., 59, the action was maintained for injury done to a horse left standing in one of the streets of Boston, in violation of a city ordinance. The same defence was set up in that case as in this. The Court say “It did show negligence in respect to keeping the ordinance, but did not necessarily show negligence that contributed to the injury.” See also Kearns vs. Snowden, 104 Mass., 63, (n;) Albert vs. Bleecker Street R. R. Co., 2 Daly, 389. These last cases are authorities directly in point, and as no case to the contrary has been cited by the appellants we suppose none can be found. They sustain the ruling of the Court below, and we think the learned Judge, in rejecting the instruction asked for, was clearly in the right. The prayer in the second bill of exceptions depends much upon the same principle. It was in evidence, that when the wagon of the appellants turned into Monument Square, more than one of the drivers of the hacks upon — 129 — the stand, noticing the large and hulkv load of furniture upon it, gave warning of approaching danger. The wagon was then half a square from the point where the accident occurred, and if the warning had been heeded, it is claimed there was ample time for the drivers to have reached their horses before it happened. Ooffey, however, one of the appellees, and whose carriage and horses ■were injured, did not reach his horses until after the falling of the load of furniture, and after they had started to run. The Court is then asked to instruct the jury, that this “amounts iu law to contributory negligence, and debars the plaintiffs from recovering.” The theory of this prayer is, had the appellee, Coffey, been more prompt he could have reached his horses before the load fell from the wagon, and the injury complained of would not have happened. Had he reached his horses in time, it is possible he might have held them in check and the injury thus sustained have been avoided. But to hold, that his failure to reach them sooner than he did, constituted in law contributory negligence, would be disregarding the well known difference between remote and proximate cause, and would he carrying the doctrine of contributory negligence in law to an extreme, certainly not warranted by any authority. The third exception is taken to the refusal of the Court, after the evidence on the part of the plaintiffs was closed, to instruct the jury “that the plaintiffs are not entitled to recover in this case upon all the evidence offered by them.” This prayer was properly rejected. The plaintiffs had offered testimony by more than one witness, that the wagon of the defendants was unusually and largely loaded, so much so as to occasion a reasonable apprehension of some accident; that its load did fall to the street, near a public stand for hacks ; that the accident frightened the horses — 130 — of the plaintiffs and others, and caused them to run off, and that the horses and carriage of the plaintiffs were seriously damaged. The Court could not have said, from a review of all the testimony, that it was legally insufficient to enable the plaintiffs to recover. The defendants then proceeded to offer their proof. And after the testimony had been closed upon both sides, the plaintiffs submitted three prayers to the Court, and the defendants thirteen. The Court rejected all the prayers of both plaintiffs and defendants, with the exception of the sixth prayer of the defendants, which was granted, and gave to the jury an instruction of its own. This constitutes the fourth exception, and presents the single point, whether the question of negligence was fairly and fully presented to the jury. Of this we think there can be no doubt. The sixth prayer of the defendants certainly submits the question of contributory negligence. By it the jury are instructed that their verdict cannot be for the plaintiffs, if they find from the evidence that the injury to the plaintiffs’ hack and horses is attributable to the combined negligence of the plaintiffs and defendants, although they should find a want, of proper care on the part of the defendants. But apart from this instruction, the one given by the Court, in place of those rejected, fully covers the law of the case, and leaves no ground to the defendants to allege as error, that their defences were not properly submitted to the jury. It directs the jury what facts are necessary in law to be found by them to enable the plaintiffs to recover, and what negligence on the part of the plaintiffs will prevent such a recovery. It lays down the true measure of damages, and submits to the jury clearly and fully the rule of law, by which.they are to be guided in considering the question of negligence. — 131 — (Decided 2nd March, 1876.) Seeing no error in the rulings of the Court helow, the judgment will he affirmed. Judgment affirmed.