Baltimore City Passenger Ry. Co. v. Cooney

Citations

• 87 Md. 261
• 39 A. 859
• 1898 Md. LEXIS 129

Syllabus

<p>Negligence—Injury by Street Railway—Avoidance of Accident After Knowledge of Plaintiff ’s Peril—Contributory Negligence—Evidence-Instructions to the fury— Corroborating JVitness.</p> <p>In an action against an electric street railway company the evidence on the part of the plaintiff, a boy eleven years of age, was that he was standing with other boys in the middle of a street looking at a workman, with his back turned towards defendant’s car, which approached the crossing at a high rate of speed without sounding the gong or giving any warning ; that plaintiff ran without seeing the car when he saw the other bo\\'S running, but stumbled and fell, and the car passed over one 'of his legs ; that there was an unobstructed view along the track. • Held,</p> <p>ist. That although the plaintiff was guilty of negligence in standing on the track with his back towards approaching cars and without looking, yet if defendant’s motorman could have avoided the accident by the exercise of due care after he saw or ought to have seen plaintiff’s peril, then the plaintiff’s negligence is not a bar to recovery in this action.</p> <p>2nd. That a prayer instructing the jury that there was no legally sufficient evidence of negligence on the part of the defendant to warrant a verdict was properly rejected.</p> <p>A prayer offered by the defendant instructed the jury that even if they found that the plaintiff just before the accident was standing in the street with other boys and that when they ran he also started to run and fell, and in consequence was run over by the car, and should also find that the plaintiff when so standing was at the side of the track and not in the way of the car, then the verdict should be for the defendant. Held, that this prayer should have been granted because if the plaintiff was not on the track when the car approached but stumbled and fell on the same too late for the motorman to see him or to avoid running over him, the defendant is not liable.</p> <p>When