Alvey, J.,
delivered the opinion of the Court.
This record presents cross-appeals, but we are only required to pass upon the appeal of the plaintiff below in the event of reversal on the exception of the defendant.
The action was brought to recover of the defendant for injuries sustained by the plaintiff, by being caught between two cars of the former, while the latter was attempting to cross Howard street in Baltimore.
At the trial below prayers were offered for the Court’s instruction to the jury, on both sides; but of those prayers only the second and third of the plaintiff, and the third and [43]*43seventh of the defendant, were granted. The first of the plaintiff, and first, second, fourth, fifth and sixth of the defendant, were rejected; and it was to the refusal of the defendant’s five prayers, and to the granting of the second and third prayers of the plaintiff, that the defendant excepted.
On the question of negligence, the main question in the cause, the second prayer of the plaintiff, and the third prayer of the defendant, taken together, would seem to have fully and quite correctly instructed the jury as to the law by which their verdict should be found. To justify a finding for the plaintiff, under the instruction, the jury were required to find the want of ordinary care and prudence on the part of the defendant, in the use and management of its cars, and that such want of ordinary care and prudence directly cawsed the injury complained of; but that the plaintiff could not recover, if, by the exercise of ordinary care and caution on his part, he could have avoided the accident. This instruction was clear and distinct, and ivas in accordance with the well settled principles applicable to cases like the present. The jury found the conditions required to entitle the plaintiff to a verdict; but whether properly or not, on the evidence before them, is not a question for this Court to decide. That was a question which could only be determined by the Court below, on a motion for a new trial.
The third prayer of the plaintiff, which instructed the jury as to the proper elements in reference to which the damages should be assessed, in the event of their finding for the plaintiff, was clearly correct. Indeed, we do not understand that it was at all controverted by the defendant. The prayer itself is marked as conceded.
By the first, second, and fourth prayers of the defendant, which were rejected, the question as to what constituted contributory negligence, or want of ordinary care on the part of the plaintiff, was sought to be made one of law for the Court to decide, rather than one of fact for the jury to determine, under all the facts and circumstances of the case. Each of [44]*44these prayers, upon certain enumerated facts, required the Court to instruct the jury, that, as matter of Jaw, there was want of ordinary care by tire plaintiff, and therefore he was not entitled to recover. In refusing to grant these prayers, or either of them, the Court committed no error.
This Court has too often decided to be required again to repeat, that the question of negligence or the want of ordinary care, in cases like the present, is one of fact for the consideration of the jury. The most that the Court can do, in cases where there is a contrariety of evidence, and the question of care or negligence depends upon the consideration of a variety of circumstances, is to define the degree of care and caution exacted of the parties, and leave to the practical judgment and discretion of the jury, the work of comparing the acts and conduct of the parties concerned with what would be the natural and ordinary course of prudent and discreet men under similar circumstances. To attempt to do more than this, in the great majority of cases that occur, would require of the Court to multiply distinctions, and to indulge refinements, to suit the particular circumstances of each case, to an extent that would tend rather to embarrass than promote the fair and liberal administration of justice.
In this case, as in other cases of the like character, the degree of care required of the plaintiff to entitle him to recover, was simply such as should have been reasonably expected from an ordinarily prudent person in his situation; that is to say, reasonable care. If he exercised such degree of care, though he may have been guilty of some negligence or want of caution, he was still entitled to recover for any injury sustained in consequence of the defendant’s negligence. If the defendant did not exercise ordinary care, and the plaintiff, by the exercise of'such degree of care on his part, could not have avoided the consequence of the defendant’s negligence, he was entitled to recover; and the whole question was, whether the danger in crossing the street between the two apparently stationary cars was so obvious that a person of [45]*45common or ordinary prudence would not have made the attempt. This depended upon a consideration of all the facts and circumstances attending the accident, and was essentially a question of fact for the jury. What will amount to ordinary care or the absence of it, in any given case, must always be determined by the standard of common prudence and experience, in view of the special circumstances. What may be ordinary care with reference to one particular state of circumstances, may fall very far short of it with reference to another. Hence a jury, if intelligent, and experienced, forming their conclusions from their knowledge of the usual and ordinary conduct of their fellow-men, are the best judges of such a question. And such questions have, both in this country and in England, been generally referred to the jury, as matters of fact; and the decisions of this Court have been uniform upon the subject.
Whether the defendant was using ordinary care at the time of the accident, was equally a question of fact as that involved in the first, second and fourth prayers of the defendant, and hence its fifth prayer, which sought to make the question of the defendant’s use of ordinary care one of law exclusively for the Court, was properly rejected. To say, that because the defendant, in making upj its train of cars on the street, had left openings at the regular crossings, and as the accident did not occur at a regular crossing, therefore, as a legal conclusion, the defendant was using ordinary care, is a pwopwsition that cannot be for a moment sustained. Apart from the error of attempting to make the question of ordinary care one of law instead of fact, this prayer utterly ignored all the circumstances tending to prove negligence on the part of the defendant, and would have precluded the plaintiff’s right of recovery, though the grossest negligence might have occurred in producing the injury, provided it was at another place than a regular crossing of the street. This prayer, therefore, was objectionable upon more grounds than one.
[46]*46From what we have said, however, as to the nature of the questions raised by the rejected prayers of the defendant, we do not desire it to be understood, that, in our opinion, there are no cases where the question of negligence could be properly one of law for the Court. Far from it. Many sueh could be suggested, though they are not of frequent occurrence; but such cases always present some prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ.
Free access — add to your briefcase to read the full text and ask questions with AI
Alvey, J.,
delivered the opinion of the Court.
This record presents cross-appeals, but we are only required to pass upon the appeal of the plaintiff below in the event of reversal on the exception of the defendant.
The action was brought to recover of the defendant for injuries sustained by the plaintiff, by being caught between two cars of the former, while the latter was attempting to cross Howard street in Baltimore.
At the trial below prayers were offered for the Court’s instruction to the jury, on both sides; but of those prayers only the second and third of the plaintiff, and the third and [43]*43seventh of the defendant, were granted. The first of the plaintiff, and first, second, fourth, fifth and sixth of the defendant, were rejected; and it was to the refusal of the defendant’s five prayers, and to the granting of the second and third prayers of the plaintiff, that the defendant excepted.
On the question of negligence, the main question in the cause, the second prayer of the plaintiff, and the third prayer of the defendant, taken together, would seem to have fully and quite correctly instructed the jury as to the law by which their verdict should be found. To justify a finding for the plaintiff, under the instruction, the jury were required to find the want of ordinary care and prudence on the part of the defendant, in the use and management of its cars, and that such want of ordinary care and prudence directly cawsed the injury complained of; but that the plaintiff could not recover, if, by the exercise of ordinary care and caution on his part, he could have avoided the accident. This instruction was clear and distinct, and ivas in accordance with the well settled principles applicable to cases like the present. The jury found the conditions required to entitle the plaintiff to a verdict; but whether properly or not, on the evidence before them, is not a question for this Court to decide. That was a question which could only be determined by the Court below, on a motion for a new trial.
The third prayer of the plaintiff, which instructed the jury as to the proper elements in reference to which the damages should be assessed, in the event of their finding for the plaintiff, was clearly correct. Indeed, we do not understand that it was at all controverted by the defendant. The prayer itself is marked as conceded.
By the first, second, and fourth prayers of the defendant, which were rejected, the question as to what constituted contributory negligence, or want of ordinary care on the part of the plaintiff, was sought to be made one of law for the Court to decide, rather than one of fact for the jury to determine, under all the facts and circumstances of the case. Each of [44]*44these prayers, upon certain enumerated facts, required the Court to instruct the jury, that, as matter of Jaw, there was want of ordinary care by tire plaintiff, and therefore he was not entitled to recover. In refusing to grant these prayers, or either of them, the Court committed no error.
This Court has too often decided to be required again to repeat, that the question of negligence or the want of ordinary care, in cases like the present, is one of fact for the consideration of the jury. The most that the Court can do, in cases where there is a contrariety of evidence, and the question of care or negligence depends upon the consideration of a variety of circumstances, is to define the degree of care and caution exacted of the parties, and leave to the practical judgment and discretion of the jury, the work of comparing the acts and conduct of the parties concerned with what would be the natural and ordinary course of prudent and discreet men under similar circumstances. To attempt to do more than this, in the great majority of cases that occur, would require of the Court to multiply distinctions, and to indulge refinements, to suit the particular circumstances of each case, to an extent that would tend rather to embarrass than promote the fair and liberal administration of justice.
In this case, as in other cases of the like character, the degree of care required of the plaintiff to entitle him to recover, was simply such as should have been reasonably expected from an ordinarily prudent person in his situation; that is to say, reasonable care. If he exercised such degree of care, though he may have been guilty of some negligence or want of caution, he was still entitled to recover for any injury sustained in consequence of the defendant’s negligence. If the defendant did not exercise ordinary care, and the plaintiff, by the exercise of'such degree of care on his part, could not have avoided the consequence of the defendant’s negligence, he was entitled to recover; and the whole question was, whether the danger in crossing the street between the two apparently stationary cars was so obvious that a person of [45]*45common or ordinary prudence would not have made the attempt. This depended upon a consideration of all the facts and circumstances attending the accident, and was essentially a question of fact for the jury. What will amount to ordinary care or the absence of it, in any given case, must always be determined by the standard of common prudence and experience, in view of the special circumstances. What may be ordinary care with reference to one particular state of circumstances, may fall very far short of it with reference to another. Hence a jury, if intelligent, and experienced, forming their conclusions from their knowledge of the usual and ordinary conduct of their fellow-men, are the best judges of such a question. And such questions have, both in this country and in England, been generally referred to the jury, as matters of fact; and the decisions of this Court have been uniform upon the subject.
Whether the defendant was using ordinary care at the time of the accident, was equally a question of fact as that involved in the first, second and fourth prayers of the defendant, and hence its fifth prayer, which sought to make the question of the defendant’s use of ordinary care one of law exclusively for the Court, was properly rejected. To say, that because the defendant, in making upj its train of cars on the street, had left openings at the regular crossings, and as the accident did not occur at a regular crossing, therefore, as a legal conclusion, the defendant was using ordinary care, is a pwopwsition that cannot be for a moment sustained. Apart from the error of attempting to make the question of ordinary care one of law instead of fact, this prayer utterly ignored all the circumstances tending to prove negligence on the part of the defendant, and would have precluded the plaintiff’s right of recovery, though the grossest negligence might have occurred in producing the injury, provided it was at another place than a regular crossing of the street. This prayer, therefore, was objectionable upon more grounds than one.
[46]*46From what we have said, however, as to the nature of the questions raised by the rejected prayers of the defendant, we do not desire it to be understood, that, in our opinion, there are no cases where the question of negligence could be properly one of law for the Court. Far from it. Many sueh could be suggested, though they are not of frequent occurrence; but such cases always present some prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ. AYhere such is the case, and the act in question is not dependent upon surrounding circumstances for its quality, the Court should not hesitate to characterize it according to its true nature, and allow at once the legal consequences to’follow. Rut this cannot be done where the nature and quality of the act can only be correctly determined by considering all the attending circumstances of the transaction, as in this ease.
The defendant’s sixth prayer, which related to the construction of the City Ordinance, we think was also properly rejected. It was utterly impossible for the Court to say, that, though the cars were being placed in procession in the street, between the hours of 5 and 9 o’clock P. M., with the purpose of being drawn away to their regular place of destination, they were therefore in actual service, within the meaning of the Ordinance, and were not required to be fastened as cars are required to be when left standing in the street for a period of more than an hour. Mere constructive service is clearly not within the meaning and object of the Ordinance. The Ordinance had for its object the prevention of danger to persons having occasion to use the street while cars were allowed to stand in it. This object would be in a great measure defeated, if the construction contended for by the defendant were to prevail. The Ordinance requires no artificial construction to arrive at its meaning. AYhether the cars were in actual service could only be determined by observation, as matter of fact. It was, therefore, a question for the jury, [47]*47whether the cars were in actual service at the time of the accident.
(Decided 12th January, 1872.)
Discovering no error in any of the rulings of the Court below, embraced by the exception of the defendant, and the plaintiff having directed the dismissal of his appeal, we shall affirm the judgment below on the defendant’s appeal.
Judgment affirmed.