Robinsoít, J.,
delivered the opinion of the Court.
This suit was brought to recover damages for injuries alleged to have been caused by the negligence of the defendant.
The undisputed facts are as follows: Between six and seven o’clock, on the evening of January 16th, 1871, the appellee,-by its agents, was engaged in makin'g up a train of freight cars on the'line of Howard street, north and south of Camden street, in Baltimore, preparatory to its leaving the city. The engine was attached to the south end of the train, some distance below Camden street, and was backing or jarring the cars up Howard, to couple with cars north of Camden. The plaintiff being at the depot of the defendant, whither he had gone to take the train for Washington, started to go to the Fountain Hotel, on the north side of Camden street, a short distance from the cornfer of-Howard. 'Arriving at the corner of Howard and Camden, he found the crossing blocked by the freight cars of the defendant. He did not see the engine attached to the train, although the street lamps were lighted, but he admits he did not look particularly for it; nor did he see any employes of the defendant at or about the crossing. The street had been blocked by the cars from twenty-five to thirty minutes ; and a number of persons had collected at the crossing waiting for the train to move. The plaintiff waited from five to seven minutes, during which' time he saw several persons climb up to the platform of one of the cars and thus pass to the opposite side of the street; he also saw a policeman stop two women who were attempting to crawl under the coupling of the cars. Finally he determined to climb over the platforms of the two cars, and taking hold of the handle used for getting on the cars, while in the act of pulling himself up, with one foot on the platform and the other hanging down, the train suddenly moved, and his leg was caught arid crushed between the two cars. The plaintiff also read [598]*598certain ordinances of the city for the purpose of showing that the defendant was making up the train and blocking up the crossing in a manner prohibited by the same.
Upon these facts, the Court, iu granting the defendant’s and in refusing the plaintiff’s prayers, instructed •the jury substantially, that the plaintiff had by Ms own negligence contributed to the injury, and was not, therefore, entitled to recover. We fully agree with the counsel for the appellant, that in cases of this kind the question of negligence, as a general rule, is a matter for the determination of the jury, under instructions from the Court defining the degree of care required of each party, according to the nature of the relations borne by the defendant to the party injured.
But we have said more than once “ that cases may and do sometimes occur, where the Court is required to declare some plain act of carelessness on the part of the plaintiff', to he in law such contributing negligence as will prevent a recovery, 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.”
In this, as in all other cases, the burden of proof is on the plaintiff, and, although it is the province of the jury to decide matters of fact when evidence legally sufficient for that purpose is submitted to their consideration, yet this legal sufficiency is a question of law, of which the Court is the exclusive judge; and where the testimony is so slight and inconclusive that no rational mind can infer from it the fact which it is offered to establish, it is not only the right, but the duty of the Court, when applied to for that purpose, to instruct the jury that there is no evidence before them to warrant their finding the fact so sought to be established.
[599]*599Without reviewing tho many cases in which the subject of negligence has been considered, the question in this- and in all cases of the like kind, is whether the injury complained of was caused entirely by the negligence or improper conduct of the defendant, or whether the plaintiff so far contributed to the same by his own negligence or want of ordinary care and prudence, that, but for such, negligence or want of care and prudence, the injury would not have happened. In tho first case, the plaintiff would be entitled to recover — in the latter he would not, unless the defendant, by the exercise of care and prudence, might have avoided the consequences of the plaintiff’s negligence. The rule thus laid down in Tuff vs. Warman, 94 E. G. L. Rep., 583, avoids the distinction between remote and proximate causes, a subject which Pigot, C. B., says has perplexed metaphysicians from the days of the disquisitions of the schoolmen, down to the essays of Hume and Browne, and presents the law in clear and intelligible terms, suited to the capacities of men of good common sense and ordinary information.
The question in this appeal resolves itself then into this, was the attempt on the part of the plaintiff to get on the platform of the car, under the circumstances, such a glaring act of carelessness as to amount in law to contributory negligence? To this, we think,'there can be but one answer. On reaching the crossing at Camden and Howard streets, instead of waiting until the train had moved, or walking up to Pratt street, the distance of a square only, where he could have crossed without risk, he attempted, although it was dark, to get on the platform of one of the cars, at a time too when the defendant was making up its freight train, and without even looking or inquiring whether an engine was attached thereto. For such negligence, it is no excuse to say that he had seen five or six of the crowd of persons there collected make a like attempt without injury, and, especially in the face of [600]*600the admonition given by the policeman, who, in the very .presence of the plaintiff, had prevented two women from exposing themselves to a danger so imminent. The ordinary care which the law requires is the exercise of such caution and prudence as are fairly proportioned to the danger to be avoided, judged by the standard of common prudence and experience. Tested by this standard, the conduct of the plaintiff in thus exposing himself to a danger so threatening-, can be viewed in no other light than as an act of carelessness, amounting in law to contributory negligence.
But it was also contended that the plaintiff is not prevented from recovering, if the defendant, by the exercise of ordinary care, might have avoided the consequences of the plaintiff’s negligence. An action, it is true, will lie in some cases, where there has been negligence on both sides, but in such cases it must appear that the defendant, by a proper degree of caution, might have avoided the consequences of the plaintiff’’s negligence, or that the latter could not, by ordinary care and prudence, have avoided the consequences of the defendant’s negligence. “This, however, implies time for one party to become aware of the conduct and situation of the other, for neither could be required to anticipate the other’s negligence.” Northern Central Railway Co. vs. State, use of Geis, 31 Md., 366.
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Robinsoít, J.,
delivered the opinion of the Court.
This suit was brought to recover damages for injuries alleged to have been caused by the negligence of the defendant.
The undisputed facts are as follows: Between six and seven o’clock, on the evening of January 16th, 1871, the appellee,-by its agents, was engaged in makin'g up a train of freight cars on the'line of Howard street, north and south of Camden street, in Baltimore, preparatory to its leaving the city. The engine was attached to the south end of the train, some distance below Camden street, and was backing or jarring the cars up Howard, to couple with cars north of Camden. The plaintiff being at the depot of the defendant, whither he had gone to take the train for Washington, started to go to the Fountain Hotel, on the north side of Camden street, a short distance from the cornfer of-Howard. 'Arriving at the corner of Howard and Camden, he found the crossing blocked by the freight cars of the defendant. He did not see the engine attached to the train, although the street lamps were lighted, but he admits he did not look particularly for it; nor did he see any employes of the defendant at or about the crossing. The street had been blocked by the cars from twenty-five to thirty minutes ; and a number of persons had collected at the crossing waiting for the train to move. The plaintiff waited from five to seven minutes, during which' time he saw several persons climb up to the platform of one of the cars and thus pass to the opposite side of the street; he also saw a policeman stop two women who were attempting to crawl under the coupling of the cars. Finally he determined to climb over the platforms of the two cars, and taking hold of the handle used for getting on the cars, while in the act of pulling himself up, with one foot on the platform and the other hanging down, the train suddenly moved, and his leg was caught arid crushed between the two cars. The plaintiff also read [598]*598certain ordinances of the city for the purpose of showing that the defendant was making up the train and blocking up the crossing in a manner prohibited by the same.
Upon these facts, the Court, iu granting the defendant’s and in refusing the plaintiff’s prayers, instructed •the jury substantially, that the plaintiff had by Ms own negligence contributed to the injury, and was not, therefore, entitled to recover. We fully agree with the counsel for the appellant, that in cases of this kind the question of negligence, as a general rule, is a matter for the determination of the jury, under instructions from the Court defining the degree of care required of each party, according to the nature of the relations borne by the defendant to the party injured.
But we have said more than once “ that cases may and do sometimes occur, where the Court is required to declare some plain act of carelessness on the part of the plaintiff', to he in law such contributing negligence as will prevent a recovery, 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.”
In this, as in all other cases, the burden of proof is on the plaintiff, and, although it is the province of the jury to decide matters of fact when evidence legally sufficient for that purpose is submitted to their consideration, yet this legal sufficiency is a question of law, of which the Court is the exclusive judge; and where the testimony is so slight and inconclusive that no rational mind can infer from it the fact which it is offered to establish, it is not only the right, but the duty of the Court, when applied to for that purpose, to instruct the jury that there is no evidence before them to warrant their finding the fact so sought to be established.
[599]*599Without reviewing tho many cases in which the subject of negligence has been considered, the question in this- and in all cases of the like kind, is whether the injury complained of was caused entirely by the negligence or improper conduct of the defendant, or whether the plaintiff so far contributed to the same by his own negligence or want of ordinary care and prudence, that, but for such, negligence or want of care and prudence, the injury would not have happened. In tho first case, the plaintiff would be entitled to recover — in the latter he would not, unless the defendant, by the exercise of care and prudence, might have avoided the consequences of the plaintiff’s negligence. The rule thus laid down in Tuff vs. Warman, 94 E. G. L. Rep., 583, avoids the distinction between remote and proximate causes, a subject which Pigot, C. B., says has perplexed metaphysicians from the days of the disquisitions of the schoolmen, down to the essays of Hume and Browne, and presents the law in clear and intelligible terms, suited to the capacities of men of good common sense and ordinary information.
The question in this appeal resolves itself then into this, was the attempt on the part of the plaintiff to get on the platform of the car, under the circumstances, such a glaring act of carelessness as to amount in law to contributory negligence? To this, we think,'there can be but one answer. On reaching the crossing at Camden and Howard streets, instead of waiting until the train had moved, or walking up to Pratt street, the distance of a square only, where he could have crossed without risk, he attempted, although it was dark, to get on the platform of one of the cars, at a time too when the defendant was making up its freight train, and without even looking or inquiring whether an engine was attached thereto. For such negligence, it is no excuse to say that he had seen five or six of the crowd of persons there collected make a like attempt without injury, and, especially in the face of [600]*600the admonition given by the policeman, who, in the very .presence of the plaintiff, had prevented two women from exposing themselves to a danger so imminent. The ordinary care which the law requires is the exercise of such caution and prudence as are fairly proportioned to the danger to be avoided, judged by the standard of common prudence and experience. Tested by this standard, the conduct of the plaintiff in thus exposing himself to a danger so threatening-, can be viewed in no other light than as an act of carelessness, amounting in law to contributory negligence.
But it was also contended that the plaintiff is not prevented from recovering, if the defendant, by the exercise of ordinary care, might have avoided the consequences of the plaintiff’s negligence. An action, it is true, will lie in some cases, where there has been negligence on both sides, but in such cases it must appear that the defendant, by a proper degree of caution, might have avoided the consequences of the plaintiff’’s negligence, or that the latter could not, by ordinary care and prudence, have avoided the consequences of the defendant’s negligence. “This, however, implies time for one party to become aware of the conduct and situation of the other, for neither could be required to anticipate the other’s negligence.” Northern Central Railway Co. vs. State, use of Geis, 31 Md., 366.
A man asleep on the highway, or walking negligently, it may be, upon a railroad track, is not to be run over, provided it can be avoided by the exercise of ordinary care. Or, take the case of a vessel failing to exhibit the proper lights and to take the right side of the channel as required by the Navigation Act, such acts of negligence are no defence in a suit against a colliding vessel, provided the latter being aware of the negligence of the former, could have avoided the collision by the exercise of ordinary care. Where, however, there is no opportunity for one party to become aware of the negligence of [601]*601the other, and the injury is occasioned by the concurrent and co-operating negligence of both, it is well settled that no action will lie. In the case before us, if it be conceded there was negligence on the part of the defendant in the use of the engine at the time of the injury, it is equally clear, there was concurrent negligence on the part of the plaintiff in attempting to get on the platform of the car, and although the crossing was temporarily blocked, it cannot he imputed as negligence to the agents of the defendant, that they did not anticipate such recklessness on the part of the plaintiff. After the'attempt was made to get on the cars, it was impossible for the defendant to have avoided the injury by the exercise of ordinary care, because there was no interval of time during which the agents of the latter could become aware of the danger to which the plaintiff was exposed.
(Decided 10th July, 1873.)
Then on the other hand, so far as regards the prior acts of negligence of the defendant, such as using an engine on the track in the city, and blocking the crossing, in a manner prohibited by the city ordinances, it is very clear, that such acts of negligence did not exempt the plaintiff from the use of ordinary care in order to avoid the consequences of the defendant’s negligence. The fact that a train of cars is unlawfully blocking a crossing, is no reason why' a person should throw himself under the wheels, or recklessly expose himself to danger. He is bound, notwithstanding such acts of negligence, to exercise proper care and prudence, and if he fail? to do so, he cannot hold another responsible for an injury which may be fairly traced to his own negligence.
In any aspect, therefore, in which this case may be considered, we are of opinion, there was contributory negligence on the part of the plaintiff, and that the judgment below ought to be affirmed.
Judgment affirmed.