Grabrues v. Klein

Briscoe, J., delivered the opinion of the Court. This was an action brought in the Court of Common Pleas of Baltimore to recover damages for personal injuries sustained by the appellant, resulting from the negligence of the appellee’s servant in driving a cart along the streets of Baltimore. At the conclusion of the plaintiff’s evidence the Court instructed the jury that the negligence of the plaintiff directly contributed to the injury, and their verdict must be for the defendants. And it is from the judgment thus entered on the verdict that this appeal is taken. The only question, then, presented by the exception to the prayer is, whether the case should have been submitted to the jury, or whether the facts were so clear and plain as to have justified the Court in pronouncing them contributory negligence as a matter of law. And, as the prayer is in the nature of a demurrer, it becomes necessary to examine the evidence upon which it was based. The plaintiff testified that at the time of the accident he was on the east-going car track, on Hillen street, driving three horses attached to a farm wagon loaded with manure, and was walking close by the side of his wagon, and only occupying one-half of the east-going track ; that when he first saw the appellee’s cart it was about ten or twelve feet from him, coming down the west-bound car track, the cart being loaded with bricks and drawn by a mule, but no driver was in view. He further testified, that when about four or five feet from him, the mule turned directly across the street, catching him between the hub of the wheel of the appellee’s cart and the rubbing-block or brake of his own cart, thereby inflicting a serious and permanent injury to his left leg. He also testified, that as soon as he saw the mule and cart coming towards him, he made an effort to avoid the accident; that he was prevented from advancing to the front, and in endeavor [86] ing to escape by trying to step backward was caught and dragged against the brake or rubbing-block of his wagon. In the language of the witness, “When I saw the mule coming towards me I wanted to get out of the way, but the cart was too close before I could run away.” “ I tried to run out of the way, but before I could do so the wheel caught me.” “ The mule turned out quickly and cut me off.” He further testified that he was careful and tried to save himself, but could not do so. The witness, Burns, who saw the accident, stated that the plaintiff was almost opposite to him “ when the cart pulled out of the track and shied on the other side and caught the plaintiff.” Now, it was upon these undisputed facts, at the close of the plaintiff’s case, that the Court instructed the jury that the plaintiff was guilty of such contributing negligence as would prevent a recovery on his part, notwithstanding the conceded negligence of the defendants. Plainly there was error in this instruction as applicable to the facts presented by the record in this case. “Ordinarily,” said this Court, in the recent case of Peoples' Bank v. Morgolofski, 75 Md. 441, “the question of negligence is one for the jury, but sometimes it becomes the duty of the Court to instruct them’, that in spite of the negligence of the defendant the plaintiff cannot recover. The Court, however, will never assume 'this responsibility, unless the case is a very clear one and presents * * some prominent and decisive act in regard to the effect and character, of which no room is left for ordinary minds to differ.” And this has been the uniform current of decisions of the Courts upon this subject. We fail to find any act on the part of the plaintiff here that can be relied on as tending to show such contributing negligence, as warranted the Court in withdrawing this case from the jury. On the contrary, the plaintiff testified that he made every effort to avoid the accident, but could not do it, and this, in connection with the other testimony, was not sought to be denied, but was admitted under the pleadings. We are all, then, of the [87] opinion that this case should not have been withdrawn from the jury, and for this error the judgment will be reversed and a new trial awarded. Decided March 26th, 1895.) Judgment reversed and a new trial awarded, with costs in this Court and below.