Firor v. Taylor

81 A. 389, 116 Md. 69

• Court: Court of Appeals of Maryland
• Decided: June 5, 1911
• Status: Published

Opinion

Boyd, C. J.,

delivered the opinion of the Oourt.

I’he appellee sued the Pittsburg Valve Foundry Construction Company and the Mayor and City Council of Baltimore, together with the two appellants (Firor and Saxton) now before us, for injuries alleged to have been sustained by him by being struck by beams or timbers which protruded over a sidewalk in Baltimore while being carried in a wagon through one of its streets. During the course of the trial verdicts were rendered in favor of the two corporations, but a verdict was also rendered against the two individual defendants, upon which a judgment was entered. They took separate appeals, which upon motion in this Court were consolidated.

The case is a peculiar one, as each of the two- appellants seeks to put the responsibility upon the other. As it had been recently repeated by us that when one of two or more parties against whom a judgment has been entered at law desires to appeal, he should apply to this Court for a writ of summons and severance (Oldenburg v. Dorsey, 102 Md. 172; P., B. & W. R. Co. v. Stumpo, 112 Md. 571), it would perhaps have been better to have pursued that course, but as the appeals were with our leave consolidated, we will treat them as 'a joint appeal, although the fact that some of the exceptions were taken by the one or the other of them makes the record somewhat confusing.

The first exception of Defendant Firor will first be briefly referred to. When the first witness mentioned in the exception was on the stand, the plaintiff called for the' contract between the Mayor and City Council of Baltimore and the Pittsburg Company and after examination of it, one of the counsel for the plaintiff stated that they were satisfied that the City of Baltimore was not liable and they consented to a verdict in its favor. Accordingly, a verdict was rendered at once in favor of the Mayor and City Council of Baltimore, and judgment was entered thereon. The Defendant Firor then moved- to stay further proceedings upon the ground that judgment had been entered in favor of the said defendant, but the motion was overruled. There was no error in that ruling. It is well settled that in a suit against joint tortfeasors the plaintiff may submit to a non-suit as to such of the defendants as the evidence does not sufficiently connect with the tort in question, but, as was said in 1 Poe on PI. and Pr., section 527, “in actions of tort against several defendants-, if, at the end of the plaintiff’s ease, there is no evidence against one more of the defendants, the practice is for the Court to direct such defendant or defendants to be acquitted before any part of the defence is gone into.” In the recent case of Diamond State Co. v. Blake, 105 Md. 570, we said on page 579: “The proper practice undoubtedly was to have taken the verdict when the prayer was granted, but, it was overlooked.” That referred to a prayer which had been, granted at the conclusion of the plaintiff’s case instructing a verdict to be entered for one of the defendants. Such being the practice, there can he no possible reason, when, when the plaintiff is satisfied that one of the defendants cannot be held liable, why such a verdict cannot he rendered before the conclusion of the plaintiff’s case, as well as when it is concluded. Yo objection to the verdict in favor of the Mayor and City Council of Baltimore or of the Pittsburg Company, which was also acquitted at the end of the plaintiff’s case, can, therefore, affect the right of the plaintiff to recover against the other defendants, if otherwise entitled to do.

Yor do we think that these appellants could validly object to the allowance of the amendment of the declaration, and hence there was no error of which Piror can complain in the rulings in his sixth and seventh bills of exceptions.

Wo deem it proper at this point to pass on some of the prayers offered by the defendants, instead of considering the other exceptions in their regular order. The Defendant Piror offered twelve and the Defendant Saxton eight. Sax-ton’s third prayer asked the Court to instruct the jury “that there is no evidence legally sufficient to prove that the loading of the wagon on the day set forth in the declaration was done in a negligent manner, and their verdict must be for the defendant, E. Saxton.” If that prayer had relied simply on the fact that the accident occurred on a different day from that named in the declaration, that, of course, would not have been sufficient to defeat recovery, but that was not the point, as there was no question about the date — the day alleged in the declaration, March 23, 3 930, was the one on which the accident occurerd, as shown by the plaintiff’s own testimony and the other evidence. Without relying on the fact that iu a number of other prayers the Court’s attention was called to the pleadings, which was sufficient to require the Court to examine them, as we decided in Fletcher v. Dixon, 307 Md. 428, this prayer specifically referred to the declara tion. Tn the declaration, as amended, the ground of recovery as against Saxton was based on the distinct and only allegation that the “wagon was negligently and carelessly loaded by the agents and servants of the defendant, E. Saxton, with beams or timbers which protruded over said pavement or sidewalk,” etc.

There is no evidence in the record which tends to show negligence on the part of Saxton’s servants in loading the wagon. Surely the mere fact that the platform protruded oven the wagon is not evidence of negligence. If that be so, it might be impossible to haul a platform or other articlé which was wider than a wagon on which it is carried, without being guilty of negligence, while it is a fact known to every one ¡that many articles are hauled through the streets of cities and towns which project over and' beyond the edge of the wagons on which they are hauled. The testimony shows that this platform projected a foot, or at most a foot and a half, beyond the wagon and that it was loaded not only in the usual, but the only way it could have been. It may be true that if it had not projected beyond the wagon at all the accident would not have happened, but that fact does not make it negligence on the part of Saxton’s servants in loading the wagon. The evidence offered on the part of the plaintiffs is to the effect that it was the carelessness of the driver.which caused the injuries. He could see that the platform projected, and some of the evidence shows that before he started ¡the wagon he examined it to see how the platform was placed on it, and if there was occasion to drive up to the curb he ought to have at least warned any one standing as the plaintiff was, with his back to the wagon, of the approach of the wagon and have stopped his team, if the warning was not heeded. Inasmuch, then, as there was no evidence of negligence on the part of Saxton or his servants in loading the wagon, his third prayer should have been granted, as that was the only charge of negligence in the declaration on his part.

As his first prayer asked the Court to say there was “no evidence legally sufficient to entitle the plaintiff to recover” it wag properly refused, as there was evidence against Firor, and although he only asked for a verdict in his favor the jury might have been misled. As the right of the plaintiff to recover against Saxton was not based on the facts set out in the fourth prayer, the Court could not grant that, under its theory of the case as shown by its rejection of the third. The fifth assumed that the cause of the injury was due to the negligent driving of the wagon by the agents or Firor, and, as that was a question for the jury, it was properly rejected. What we have said as to the fourth applies to the sixth. The same thing may he said as to the seventh, with the additional statement that he got quite as much under the eighth as he could ask under the pleadings. It also follows from what we have said that his first exception to the plaintiff’s first prayer should have been sustained. The second exception to that prayer was not well taken, as will he seen by what we say in passing on the demurrer to the declaration.

The first, third and fourth prayers of Defendant Firor were properly rejected. There was in our judgment sufficient evidence to require the Court to submit the case to the jury against him. The second does not correctly state the facts relied on as alleged in the amended declaration, and hence was properly rejected. It alleged that the wagon belong'd to Firor, and not to all of the defendants. We think the sixth as favorable to the defendants as could have been asked under the evidence as to contributory negligence. The testimony does not sustain the seventh. It is true that there was some evidence that one of the men on the wagon gave an alarm, but there is nothing to show that the plaintiff heard the warning or knew that it was intended to warn him of the contents of the wagon, or that he was in danger. The undisputed evidence is not such as is stated in the eighth prayer and hence it was properly rejected. His ninth, tenth, eleventh and twelfth having been granted, we are of the opinion that he cannot complain as to1 the rulings on his prayers, or to overruling his exceptions to the plaintiff’s first prayer.

As the plaintiff’s first prayer submitted the question of negligence of Saxton’s agents in loading the wagon, and concluded with the right to recover against both defendants, there was error in granting it, as we- have said there was no such evidence. As we have seen, there was a special objection to it on that ground. Ho objection has been urged against the plaintiff’s second prayer, which refers only to the measure of damages.

It would serve no. good purpose to discuss in detail the exceptions to testimony not already referred to. F'iror’s second and ninth as to profits included questions which properly went to the jury. Ilis third, fourth and fifth are not now very material under our view of the case, but it is clear that by the questions included in them, the defendant Saxton was endeavoring to show that Firor, and not he, was responsible for the acts of the driver, which was relevant under the position taken by the lower Court. The eighth is not stated very clearly, but apparently the Court ordered stricken out what was objected to-, as it was hearsay.

It only remains to refer to the demurrers. The one to the amended declaration presents a rather novel question. By that declaration the plaintiff declared against the four defendants mentioned at the beginning of this opinion, but the allegations of what was claimed to bo negligence were confined to these two appellants, and then concludes “and by reason of the said negligent and careless acts of the defendants the plaintiff was compelled to expend large sums of money for medical attendance, and was compelled to abandon a lucrative business in which he had been engaged.” It was perhaps intended to refer in the clause just quoted to the appellants alone by the words “the defendants,” as the other two had already had verdicts in their favor, but in the first part of the amended narr. the four are named as “defendants.” It was doubtless the result of making interlineations in the narr. at the trial table, but technically the narr. was defective. It would not do to permit a plaintiff to sue four persons and then show on the face of the declaration that only two of them, according to his claim, were responsible. It is true that the other two had been discharged, hut if for any reason it was deemed proper or desirable to continue their names in the declaration, there ought to have been some statement showing that they had been acquitted, or some reason given for not alleging that they were joint, tort-feasors with the appellants. The proper practice was to leave the original narr. in the case and' file a new one against the two, if it was desired to limit the allegations of negligence against the appellants, and it could then have been stated that the suit was originally against the four, hut the other two had been discharged by the verdicts in their favor. It may he that no injury was in point of fact done the appellants by including the other two in the amended narr., hut it might cause confusion, and is not justified by any principle of pleading that we are aware of.

The narr. ought also to have more definitely alleged that the plaintiff was struck by the said timbers by reason of the said negligent and careless acts of the agents and servants of the two defendants, or something to that effect. It might he that the servants of Saxton did negligently and carelessly load the wagon, hut that such negligence and carelessness had nothing to do with the accident. Or the servants of Firor may have driven along the public highway near to the sidewalk in a negligent and' careless manner, but such negligence and careless driving may not have contributed to the injury, as the timbers might have fallen off the wagon by reason of the negligent way in which they were loaded, and have struck the plaintiff. We have stated above the conclusion of the narr., hut that applied to the claim of damages and not to the statement of the case, and, as we have seen, the four parties were named as “defendants.”

If it had been shown that Saxton’s servants negligently and carelessly loaded, the wagon, and by reason of that negli gence and carelessness and the negligent and careless driving of Firor’s servants combined, the injuries were sustained, we would have no difficulty about the question as to whether the negligence of Saxton’s servants was the proximate cause, provided the two were properly connected in the ncurr. It might he that the negligence of the one would not have caused the injury, but if the negligence of both contributed to it the law does not in such cases malee fine distinctions in determining which was the proximate cause. That is illustrated by Conowingo Bridge Co. v. Hedrick, 95 Md. 669, and Penn. Steel Co. v. Wilkinson, 107 Md. 574. So without further discussion of it, we are of the opinion that the demurrer to the amended declaration should have been sustained. In view of what we have said, it is unnecessary to pass on the rulings to the demurrer to Saxton’s pleas to the amended declaration, excepting to say that he could have gotten the benefit of what they alleged under the general issue plea and he was not injured by the rulings of the Court.

Although we. are of the opinion that the third prayer offered by Saxton should have been granted, we will not reverse the judgment without awarding a new trial as to him, hut as there was a joint judgment against the two we will follow the practice of this Court in such cases and award a new trial as to both.

Judgment reversed and new trial awarded, the appellee to pay the costs.