Bowie, J.,
delivered the opinion of the Court.
After obtaining from the Court in their first prayer (which was conceded) the declaration of the general rule, that to enable the appellees to recover, the burden of proof was on them to show that the accident complained of was altogether owing to the negligence, or want of care and skill on the, part of the [376]*376appellant or its agents; and if the jury should find from the evidence that the accident which caused the death of Dougherty was in any degree owing to the want of due care and caution, at the time of the accident, on the part of Dougherty, the appellee was not entitled to recover. The appellant, by its second, third, fourth and fifth prayers, sought to obtain from the Court instructions to the jury, that certain conduct and acts of the deceased of omission and commission, particularly set forth in the prayers, constituted such “a want of due care and caution ” on his part, as to debar the equitable plaintiffs from recovery,” or “was such negligence as proximately caused the injury,” or “is conclusive evidence of contributory negligence on his part,” or “was the proximate cause of the accident, and the plaintiff cannot recover.”
The appellant’s theory is, that although according to the previous decisions of this Court in similar cases, it has been held that generally it was the province of the jury, and not of the Court, to decide what constitutes negligence, or want of due care and diligence; yet the Court had said there are cases where the acts of the injured party are so glaringly careless and negligent, that the Court will declare them to constitute negligence in law.
It is submitted that this is one of the exceptional cases in which the appellant was entitled to the interposition of the Court, to restrain the tendency of juries to ignore the carelessness of the decedent, through their sympathy with the loss of the bereaved, by defining clearly what acts amounted to negligence; what the proximate cause of the injury, and what contributory negligence.
In the case of the Northern Central R. R. Co. vs. The State, use of Price, et al., 29 Md., 420, a case of peculiar interest, both from the character of the catastrophe and the learning and ability displayed in its argument, it Avas objected that “ the appellee’s first and second prayers were both erroneous in the manner in Avhich each submitted the question of gross negligence to the jury.”
[377]*377Commenting on which this Court said: “The next proposition is whether the question of negligence was properly referred to the jury by the plaintiff’s prayers. And this, we think, cannot now be regarded as air open question in our Courts in the trial of causes like the present. Worthington vs. Baltimore and Ohio R. R. Co., 21 Md., 275; Merchants’ Bank vs. Bank of Commerce, 24 Md., 53. Negligence, in a case like this, is not so much a question of law as it is a question of fact, depending for its determination upon a consideration of all the attending facts and circumstances, in connection with the ordinary habits, conduct and motives of men. For the trial and determination of such a question, a jury of experienced and intelligent men are peculiarly adapted.”
“ It is very true, negligence may, in many cases, become a mere question of law, to be determined by the Court upon a given state of facts, either admitted or to be found by the jury.”
“ It is not however the duty of the Court, to draw inferences and make deductions from evidence. To do that falls within the well defined province of the jury, that Courts should ever be careful not to invade.”
“ Where the facts attending the transaction are at all complex or unusual in their character, the existence of negligence must be deduced as an inference from all the facts and circumstances disclosed, after tracing their relation to the matter in issue and considering their force and effect.” Beers vs. Housatonic Railroad Co., 19 Conn., 569.
The case in which these views were expressed had many features in common with that before us. The accident occured at night, the scene was the vicinity of a village or hamlet, at the intersection of the highway, with the railroad, and the negligence (if any) consisted in the decedent’s being on the track of the railroad, whether he was properly or improperly there, depended on many collateral circumstances, from which inferences must have been deduced, to arrive at [378]*378the correct conclusion, which it was held was the province of the jury, and not of the Court, to draw.
The case of the Baltimore City Passenger Railway vs. Wilkinson, 30 Md., 226, presents an example of those cases in which negligence is a question of law for the Court. In that case it was shown that one of the regulations of the City Passenger Railway prohibited persons from getting on or off at the front end of the car, and required all persons to enter and descend by the rear platform. The plaintiff was proved to have had notice, and in violation of the regulation got on the front of the car, in getting off of which he was injured.
This Court, on the question whether the appellant’s sixth prayer, which declared “if the plaintiff knowingly violated said regulation, it was conclusive evidence of negligence on his part, and if he were injured in consequence thereof he was not entitled to recover,” should be granted, held that “In such case the question of negligence, on the part of the passenger, is a legal question for the Court to' decide, and the defendant below was entitled to ask an instruction to the jury exempt- 0 ing it from liability upon their finding the facts in the third and sixth prayers. Unlike the case where the facts from which negligence is to be inferred, are controverted, or are numerous and complicated, and when no certain legal rule or standard can be laid down, and in which the question of negligence is necessarily one to be submitted to the jury.” Balto. City Pas. Railway Co. vs. Wilkinson, 30 Md., 232, 233.
In the case of the Balto. and Ohio R. R. Co. vs. The State, use of Miller, 29 Md., 252-263, it is laid down generally that what constitutes negligence on the part of the deceased to bar a recovery, or what facts constituted due diligence, on the part of the defendant, to exempt it from liability, were questions for the jury, and the Court were right in rejecting prayers which proposed to instruct the jury as to those points. 29 Md., 263.
No question was raised in the case of the Northern Central R. Co. vs. The State, use of Geis, et al., 31 Md., 358, as to the [379]*379respective province of the Court and jury, in deciding what constituted negligence on the one part, or due diligence and care on the other. But in the case of the Balto. and Ohio R. R. Co. vs. Shipley, 31 Md., 369, the same propositions were announced as in the case of the North. Cen. R. R. Co. vs. The State, use of Price, 29 Md., 421.
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Bowie, J.,
delivered the opinion of the Court.
After obtaining from the Court in their first prayer (which was conceded) the declaration of the general rule, that to enable the appellees to recover, the burden of proof was on them to show that the accident complained of was altogether owing to the negligence, or want of care and skill on the, part of the [376]*376appellant or its agents; and if the jury should find from the evidence that the accident which caused the death of Dougherty was in any degree owing to the want of due care and caution, at the time of the accident, on the part of Dougherty, the appellee was not entitled to recover. The appellant, by its second, third, fourth and fifth prayers, sought to obtain from the Court instructions to the jury, that certain conduct and acts of the deceased of omission and commission, particularly set forth in the prayers, constituted such “a want of due care and caution ” on his part, as to debar the equitable plaintiffs from recovery,” or “was such negligence as proximately caused the injury,” or “is conclusive evidence of contributory negligence on his part,” or “was the proximate cause of the accident, and the plaintiff cannot recover.”
The appellant’s theory is, that although according to the previous decisions of this Court in similar cases, it has been held that generally it was the province of the jury, and not of the Court, to decide what constitutes negligence, or want of due care and diligence; yet the Court had said there are cases where the acts of the injured party are so glaringly careless and negligent, that the Court will declare them to constitute negligence in law.
It is submitted that this is one of the exceptional cases in which the appellant was entitled to the interposition of the Court, to restrain the tendency of juries to ignore the carelessness of the decedent, through their sympathy with the loss of the bereaved, by defining clearly what acts amounted to negligence; what the proximate cause of the injury, and what contributory negligence.
In the case of the Northern Central R. R. Co. vs. The State, use of Price, et al., 29 Md., 420, a case of peculiar interest, both from the character of the catastrophe and the learning and ability displayed in its argument, it Avas objected that “ the appellee’s first and second prayers were both erroneous in the manner in Avhich each submitted the question of gross negligence to the jury.”
[377]*377Commenting on which this Court said: “The next proposition is whether the question of negligence was properly referred to the jury by the plaintiff’s prayers. And this, we think, cannot now be regarded as air open question in our Courts in the trial of causes like the present. Worthington vs. Baltimore and Ohio R. R. Co., 21 Md., 275; Merchants’ Bank vs. Bank of Commerce, 24 Md., 53. Negligence, in a case like this, is not so much a question of law as it is a question of fact, depending for its determination upon a consideration of all the attending facts and circumstances, in connection with the ordinary habits, conduct and motives of men. For the trial and determination of such a question, a jury of experienced and intelligent men are peculiarly adapted.”
“ It is very true, negligence may, in many cases, become a mere question of law, to be determined by the Court upon a given state of facts, either admitted or to be found by the jury.”
“ It is not however the duty of the Court, to draw inferences and make deductions from evidence. To do that falls within the well defined province of the jury, that Courts should ever be careful not to invade.”
“ Where the facts attending the transaction are at all complex or unusual in their character, the existence of negligence must be deduced as an inference from all the facts and circumstances disclosed, after tracing their relation to the matter in issue and considering their force and effect.” Beers vs. Housatonic Railroad Co., 19 Conn., 569.
The case in which these views were expressed had many features in common with that before us. The accident occured at night, the scene was the vicinity of a village or hamlet, at the intersection of the highway, with the railroad, and the negligence (if any) consisted in the decedent’s being on the track of the railroad, whether he was properly or improperly there, depended on many collateral circumstances, from which inferences must have been deduced, to arrive at [378]*378the correct conclusion, which it was held was the province of the jury, and not of the Court, to draw.
The case of the Baltimore City Passenger Railway vs. Wilkinson, 30 Md., 226, presents an example of those cases in which negligence is a question of law for the Court. In that case it was shown that one of the regulations of the City Passenger Railway prohibited persons from getting on or off at the front end of the car, and required all persons to enter and descend by the rear platform. The plaintiff was proved to have had notice, and in violation of the regulation got on the front of the car, in getting off of which he was injured.
This Court, on the question whether the appellant’s sixth prayer, which declared “if the plaintiff knowingly violated said regulation, it was conclusive evidence of negligence on his part, and if he were injured in consequence thereof he was not entitled to recover,” should be granted, held that “In such case the question of negligence, on the part of the passenger, is a legal question for the Court to' decide, and the defendant below was entitled to ask an instruction to the jury exempt- 0 ing it from liability upon their finding the facts in the third and sixth prayers. Unlike the case where the facts from which negligence is to be inferred, are controverted, or are numerous and complicated, and when no certain legal rule or standard can be laid down, and in which the question of negligence is necessarily one to be submitted to the jury.” Balto. City Pas. Railway Co. vs. Wilkinson, 30 Md., 232, 233.
In the case of the Balto. and Ohio R. R. Co. vs. The State, use of Miller, 29 Md., 252-263, it is laid down generally that what constitutes negligence on the part of the deceased to bar a recovery, or what facts constituted due diligence, on the part of the defendant, to exempt it from liability, were questions for the jury, and the Court were right in rejecting prayers which proposed to instruct the jury as to those points. 29 Md., 263.
No question was raised in the case of the Northern Central R. Co. vs. The State, use of Geis, et al., 31 Md., 358, as to the [379]*379respective province of the Court and jury, in deciding what constituted negligence on the one part, or due diligence and care on the other. But in the case of the Balto. and Ohio R. R. Co. vs. Shipley, 31 Md., 369, the same propositions were announced as in the case of the North. Cen. R. R. Co. vs. The State, use of Price, 29 Md., 421.
After stating the general rule, “that negligence is a question for the jury to decide upon all the facts and circumstances of each case,” the Court said, “ But while this is the general rule, cases may and do sometimes occur, where the Court is required to declare some glaring act of carelessness on the plaintiff’s part to be, in law, such contributing negligence as will prevent are covery, or, on the other hand, where the proof of negligence on the part of the defendant is so slight and inconclusive in its nature, as to demand from the Court an instruction as to its legal insufficiency to prove negligence, in order to prevent the jury from indulging in wild speculation or irrational conjecture.”
The circumstances of that case were not, however, thought such as to warrant the interposition of the Court. After reviewing the evidence, this Court was of opinion that the Court below properly refused to instruct the jury on the question of contributing negligence, as required in the appellant’s prayers.
In Trainor’s case, 33 Md., 542, the relative duties of the Court and jury in this respect were not adverted to.
In the very recent case of Fitzpatrick vs. The Baltimore and Ohio R. R. Co., 35 Md., 32, the defendant sought, by its first, second, fourth and fifth prayers, to obtain from the Court instructions that if the jury found the accident did not occur at a regular crossing of the street where openings had been left by the defendant for passengers, but occurred at other ' openings left in the train of cars, in consequence of the plain-3 tiff’s attempt to pass between them whilst they were being prepared for service, such attempt of the plaintiff was a want of ordinary care on his part, and being the proximate cause of the injury, the plaintiff could not recover.
[380]*380These instructions were refused by the Court below, and upon appeal their rejection was affirmed by this Court in very emphatic language.
Referring to these prayers, it was said: “ 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 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 refinement 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.” They reiterate the dogma, “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.” * * * “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.”
Having laid down these general rules, the Court proceeds to say, they do not mean to say, “there are no cases where the question of negligence could, not properly be one of law for Otho Court; far from it; 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. Where such is the case, and the act in question is not de[381]*381pendent 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. But this cannot be done where the nature and quality of the act can only be correctly determined by considering all the circumstances as in this case.”
We have examined the cases in New Jersey L. Rep. and Wisconsin, referred to in the appellant’s brief; in two of these, the question was presented on a motion for a new trial, in which the Court was exercising its legitimate function of reviewing the action of the jury upon the evidence offered, and might very properly set aside a verdict if in their opinion the jury reached improper conclusions; an exercise of discretionary power in this respect, is very different from withdrawing the consideration of the facts entirely from them, and deciding their effect as a question of law.
In the ease of the New Jersey Express Co. vs. Nichols, 33 N. J. L. Rep., 434, although it was held, as with us, that if the plaintiff was negligent, and his negligence contributed to his own injury in such a manner that if he had not been negligent he would not have been injured, he could not recover, yet it does not appear that any question was raised, as to the point whether it was the province of the Court or jury to decide the question of negligence.
After carefully comparing the main facts of the case now before us, with those of the preceding cases cited, which are at all similar, we cannot discover any such distinct prominent fact, about which ordinary minds would not differ, which distinguishes the present from those cited, so as to justify the Court below, to pronounce the conduct of the deceased such negligence in law as would, if found by the jury, preclude the plaintiff from recovery. The facts from which negligence was to bo inferred were complex and controverted, subject to various constructions as viewed from different stand points, and governed by no fixed legal rules upon which the Court could assume to determine, without, in our [382]*382judgment, departing from a series of well considered decisions, and violating the cardinal legal maxim “ad questiones faoti respondeant juratores.”
(Decided 20th June, 1872.)
Finding no error in the rulings of the Court below the judgment will be affirmed.
Judgment affirmed.
Bartol, C. J., and Robinson, J.
It appears from the evidence that James Dougherty was walking at night on the railroad track of the appellant, and was killed by a locomotive. The night was dark, and the place where the accident happened was not at a public crossing of the railroad.
By the side of the track, and parallel with it, there was a county road, which had been obstructed by sand and gravel placed there by the employees of the railroad company in making repairs.
■ There is a conflict in the testimony as to the actual condition of the county road at the time of the accident. Some of the witnesses testified that the obstructions remained, and that the county road was not safe, or fit to be travelled; while others testified that the obstructions had been removed, and the road left in a passable condition.
In this state of the proof, the appellant asked the instruction contained in its fifth prayer, which we think ought to have been granted. The facts stated in this prayer, if found by the jury, would, in our opinion, constitute such negligence on the part of the deceased, directly contributing to the accident, as to deprive the appellees of the right to recover.
In Balt. and Ohio R. R. Co. vs. Shipley, 31 Md., 370, this Court, after stating that in most cases “ the rule is that negligence is a question for the jury to decide, upon all the facts and circumstances of each case,” said: “ But while this is the general rule, cases may and do sometimes occur, where the Court is required to declare some glaring act of carelessness [383]*383on the plaintiff’s part to be, in law, such contributing negligence as will prevent a recovery.” *****
And in Balto. and Ohio R. R. Co. vs. Fitzpatrick, 35 Md., 46, this Court said: “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 for the Court; far from it. Many such 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. Where 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.”
Such, in our opinion, is the case presented by the fifth prayer of the appellant, and we think there was error in refusing it.