Page images

er of eminent domain, such as a railroad plaintiffs, and that they did not see how it company, and can make me sell the property, was possible for them ever to reach an underI am not as foolish as that, and I will talk standing with Mr. Willis in regard to the to you about my property.” That plaintiffs property. That afterwards plaintiffs saw Mr. told him that their client had “the right of Willis again, and told him that they would eminent domain," and that he said then he like very much to reach an understanding would talk to them, and told them that his with him in regard to his property, "and deproperty contained about 600 acres. He did sired to negotiate further.” That they asked not know the correct area. That he esti- him to give them another price, and he remated that he had about 5,000 feet on Back fused to do it saying: “You are seeking to buy. river, and about 1,000 feet on Eastern avenue, I am not seeking to sell. It is your place and about 500 acres of inland property. That to make an offer.” That plaintiffs reported he estimated his front on the river to be to the commission on the 15th of June, and worth about $1 a foot, and his front on East- tried to get from them authority to make ern avenue at $2 a foot, and the 500 acres at Mr. Willis an offer, but they thought it was $200 an acre, and said that he would take entirely useless, as their ideas and Mr. Willis' $250,000 for the property. That plaintiff ask- were so far apart that they did not see how ed him if he could get a plat of his property it was possible to reach an understanding for them, so that they “could get down to with him. That this was the end of plaincorrect dealing with him on his property," tiffs' negotiations with Mr. Willis. as it was not satisfactory to deal on roughly Mr. Willis, who was called as a witness estimated acreage or frontage, and he said by plaintiffs, states: That the plaintiffs came Bouldin had made surveys at different times to see bim several times at his office and of portions of the property, and that he once at the property. That they asked him would see him. That plaintiffs made a writ- how much land he had, and he told them ten report of this interview with Mr. Willis about 500 acres, and that, if they repreto the commission on the 22d of May. That sented somebody who had the right to take on the 24th of May they went to see Mr. Will the property, he would take $250,000 for it. is again to see if he had gotten a plat of the That when he met the members of the property, and he said that Bouldin was to sewerage commission at the city solicitor's proceed at once to prepare a plat of his prop- office at the time mentioned by James C. erty, and that, as soon as he got hold of it, he Martien, he told those gentlemen the same would let them have it. That they then talk- thing he had told the plaintiffs. That the ed to him about the value of property in that matter was not taken up again for sometime section, quoting sales at different places, and afterwards, and until he learned that they told him he should name a different price for were about to proceed with condemnation bis property, but he still insisted that it was proceedings in Baltimore county. That he worth $250,000, "and that was his price for was told by people in Baltimore county that it.” That plaintiffs reported to the commis- they had been employed to go ahead, and sion that same day, and they told them to that he then addressed a letter to Gen. Leary, continue negotiations with him. That on the having first seen Mr. Hendrick, "and told 25th of May they reported to the commission him that I realized that the city had a right the result of negotiations on the other proper- to take it. That it was by the grace of the ties involved, and were then told by Gen. state I owned it, and by its grace it could be Leary that they thought they could assist the taken away from me, and that the only plaintiffs in their negotiations with Mr. Will- thing we could dispute about would be the is, and that they thought it was desirable price. I did not dispute the right of the for them to "see him, and show their hand, city to take it. The only thing about which and explain the purpose for which the proper- we could honestly differ in connection with ty was wanted. That the fact they would see it would be the price. I proposed to settle it him would not interfere with us, but would by a gentlemen's agreement rather than to aid us.

That this was a large city improve trust to the condemnation juries of Baltiment, and Mr. Willis was a prominent city more county. He seemed to think well of official, closely affiliated with the administra- that, but said he would have to submit it to tion, and the fact of their seeing him they his commission, which was done. The comthought would tend to aid in the purchase of mission approved of it, and an agreement the property.” That he requested plaintiffs was prepared to submit it to arbitration, the to see Mr. Willis and arrange for him to meet agreement was signed, the arbitrators were the commission at the city solicitor's office appointed, the commission met and decided the next afternoon. That the plaintiffs call- the case. I remember Gen. Leary saying he ed on Mr. Willis, and told him that their prin- wanted the paper drawn so there could be no cipals desired to see him in regard to the delays in the matter and wanted it final. If property, and to meet him at the city solici- they had said $10 to me, I would have been tor's office Saturday afternoon. That they bound to have taken it. I did not get as did meet, and that, after the meeting, plain- much as I thought I ought to have gotten, iffs were informed by the commission that and do not think so now; but I am man the statement Mr. Willis made to them was enough to live up to a gentlemen's agree

本 *

[ocr errors]

It further appears from the evidence pro- | Md. 70, 56 Am. Dec. 706, the court said: “We duced by plaintiffs that the agreement to understand the rule to be this: That the submit to arbitration was executed on the mere fact of the agent having introduced the 7th of February, 1907, and that the price purchaser to the seller or disclosed names by fixed for the Willis property by the arbitra- which they came together to treat will not tion was $200,000. The only evidence offered entitle him to compensation," unless it apby the defendant was the deed for the prop- pears that such introduction or disclosure erty from Mr. Willis to the city.

was the foundation on which the negotiation By the terms of the written contract en was begun and conducted, and the sale made. tered into by tue plaintiffs and the sewerage and in the very recent case of Walker v. commission in behalf of the city, the plain- Baldwin & Frick, 106 Md. 634, 68 Atl. 31, this tiffs undertook to negotiate the purchase by court said: “All the cases agree that the disthe city of the property desired for the use closure of the purchaser's name and the putof the commission, for which services they | ting of him in communication with the dewere to receive not more than 114 per cent. fendant by the plaintiff must not only be the of the aggregate amount of the purchases. foundation upon which the negotiations were In other words, the plaintiffs were employed begun, but upon which it was conducted and as real estate brokers by the commission, the sale ultimately made.

The representing the city, to negotiate the pur- broker must be shown to be the procuring chase of the property needed by the commis- cause of the sale. The intervention of the sion, and were to receive as compensation plaintiff in beginning the negotiations and for such services not more than 144 per cent. their subsequent culmination in a sale will of the entire amount of the purchases so not suffice unless these negotiations were the made. Now, in order to recover under this ultimate cause of the sale.” In other words, contract, which is clear and definite, it was to entitle a broker to recover commissions necessary for the plaintiffs to show that the for the sale or purchase of property, he must city, through their efforts and negotiations, not only show his efforts or negotiations to in pursuance of the terms of the contract, accomplish the sale or purchase, but he must had become the purchasers of certain prop- show that the sale or purchase was accomerty for the use or the commission. The evi- plished as the result of such efforts or negodence in the case, which we have set out at tiations. As the plaintiffs in this case failed length, and all of which was produced by the to show that the property was acquired by plaintiffs, shows conclusively that all nego- the city as a result of their efforts and netiations and dealings between the plaintiff's gotiations, there was no error in the inand Mr. Willis ceased before the 15th of struction of the court to the effect that unJune, 1906, and that the efforts of the plain- der the pleadings and evidence the plaintiffs tiffs to negotiate the purchase of his prop- were not entitled to recover commissions on erty by the city had utterly failed; that the amount paid for the Willis lot. Many both the plaintiffs and the sewerage com- other cases in this state might be cited, inmission had abandoned all efforts to secure, cluding the case of Blake v. Stump, 73 Md. and all hope of ever reaching, an agreement 160, 20 Atl. 788, 10 L. R. A. 103, referred to with Mr. Willis in regard to the purchase of by counsel for appellant, in support of the the property, and that it was not until a long rule we have stated, but they are all so entime thereafter, and until after Mr. Willis tirely in accord with the early case of Keehad heard that condemnation proceedings ner v. Harrod, supra, and the late case of were about to be instituted for the purpose Walker v. Baldwin, supra, from which we of condemning his property, that he went to have quoted, that we deem it unnecessary to the commission himself, and offered to sub- make further reference to authorities. Nor mit the matter to arbitration rather than is it necessary to discuss the cases referred undergo a condemnation proceeding. Under to by the appellant further than to say that such circumstances, the acquisition of the we do not understand them as opposing the property by the city, whether it be regarded view we have expressed. There is no doubt as a purchase within the meaning of the as to the meaning of the term “negotiate” terms of the contract or not, was not in any in the contract in this case. If we accept the sense the result of the negotiations of the definition in Palmer v. Ferry, 72 Mass. 420, plaintiffs. The right of the plaintiffs to cited by appellant, viz., that “To negotiate compensation was dependent upon the re- means to conclude by bargain, treaty or sult of their negotiations. If they failed, agreement," and apply it to the contract in and by reason thereof the city was required this case, the plaintiffs contracted “to conto resort to other means of acquiring the clude by bargain, treaty, or agreement” the property, upon what possible grounds can purchase of the property, and it is their failthe plaintiffs expect to recover? They did ure to do so in this case that defeats their not render the service, viz., “negotiate the right to recover. The evidence objected to purchase," for which the city agreed to and excluded by the court in the first excompensate them. Their effort to do so may ception was evidence to show the negotiabe commendable, but their failure defeats tions of the plaintiffs in regard to property their right to recover.

other than that purchased by the city. The


sions only on the property purchased, and and testified that he got on the platform and do not make claim to any other commissions. took the position he was in, as he was about to Therefore this evidence was not admissible the accident happened, the court properly refus

enter the car, and before he could get inside under the pleadings, to which the court was

ed to charge that if plaintiff took an exposed bound to look in determining the admissibil- and dangerous position on the car, and was inity of evidence.

jured by reason thereof, he could not recover. Finding no error in the rulings of the court Cent. Dig. $S 1403-1407; Dec. Dig. & 348.*]

[Ed. Note.--For other cases, see Carriers, in the first exception or in granting defendant's first prayer, it becomes unnecessary to


SPECULATIVE DAMAGES-EVIDENCE. consider the other questions presented by

In an action for injuries to plaintiff, evi. the record, and we must affirm the judgment dence that before the accident plaintiff had an below.

arrangement to go into business and intended Judgment affirmed, with costs.

to do so was inadmissible.

[Ed. Note.-For other cases, see Damages,

Cent. Dig. $8 490-492; Dec. Dig. § 172.*] (109 Md. 327)


EVIDENCE-MARRIAGE AFTER INJURY. UNITED RAILWAYS & ELECTRIC CO. v. In an action for injuries to plaintiff, eviRILEY.

dence that plaintiff was married after the acci

dent was inadınissible. (Court of Appeals of Maryland. Jan. 13,

[Ed. Note.-For other cases, see Damages, 1909.)

Cent. Dig. $$ 478, 479; Dec. Dig. $ 166.*] 1. CARRIERS ($ 348*)-STREET RAILROADS-IN- 7. APPEAL AND ERROR (8 1033*)-REVIEWJURIES TO PASSENGERS-DANGEROUS Posi

EFFECT OF ERROR. CONTRIBUTORY NEGLIGENCE — IN- Where, in an action for injuries, the jury STRUCTIONS.

were properly instructed as to the measure of Where, in an action for injuries to a street damages, error in permitting evidence that plaincar passenger while standing on the rear plat- tiff was married after the accident was not form by a collision, defendant pleaded contribu- ground for reversal. tory negligence, and plaintiff's testimony contained evidence from which the jury could have | Error, Cent. Dig $ 4180; Déc. Dig. 1033;*

[Ed. Note.-For other cases, see Appeal and found contributory negligence, the court erred in charging, that, if the jury found the facts Trial, Cent. Dig. $"977.] stated in plaintiff's prayer, plaintiff was enti

Appeal from Baltimore City Court; George tled to recover, unless "defendants showed" either that the injury did not result from its neg

M. Sharp, Judge. ligence, or that the accident could have been Action by V. Russell Riley against the avoided by the exercise of ordinary care on United Railways & Electric Company. Judg. plaintiff's part.

ment for plaintiff, and defendant appeals. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1403–1407; Dec. Dig. § 348.*]

Reversed and remanded. 2. CARRIERS (8 331*)-STREET RAILROADS-IN


and THOMAS, JJ. Plaintiff boarded a standing street car at night while the car was either standing still or

J. Pembroke Thom and Joseph C. France, had not moved perceptibly. Plaintiff was in- for appellant. William Colton, for appellee. jured by the car being struck by a runaway car from behind, while plaintiff was either in the act of entering or while he had stopped on THOMAS, J. V. Russell Riley, the appelthe platform momentarily with a view to go-lee and plaintiff below, who lived at 618 Coing inside as soon as the car started, or with lumbia avenue, in Baltimore city, when rethe intention of remaining on the platform. Held, that plaintiff was not negligent, nor did turning from a visit to some friends in Pikes. he assume the risk of the collision by being on ville, late at night on December 15, 1905, got the platforin after having an opportunity to go off one of the cars of the appellant at the inside the car.

corner of North and Linden avenues to take [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1378; Dec. Dig. § 331.*]

a Johns street car going to Columbia avenue. 3. CARRIERS (8 323*)-INJURIES TO PASSEN- It was cold, and he went into a drug store GERS—“ASSUMED RISK."

and got some cigars and walked up North The doctrine of assumed risk in its appli-avenue, smoking, while waiting for his car, cation to the relation of carrier and passenger but not seeing one, and seeing a Madison involves the doctrine of contributory negligence, since, unless the position voluntarily taken by avenue car standing near Wegner's restauthe passenger exposes him to obvious and pat- rant or saloon, several doors below the corent dangers or such as he is required to antici: ner, he hurried and got on it, and while he pate, he cannot in case of injury be charged with negligence or to have assumed the risk.

was on the rear platform of the car it was [Ed. Note.-For other cases, see Carriers,

struck from the rear by what is called in the Cent. Dig. § 1346; Dec. Dig. & 323.*

evidence a "runaway car," with no one in For other definitions, see Words and Phrases, charge of it, and when running rapidly on the vol. 1, pp. 589–591; vol. 8, pp. 7584, 7585.) same track in the same direction as the car 4. CARRIERS ($ 348*)—STREET RAILROADS-IN- he was on, and he sustained injuries which JURJES TO PASSENGERS--INSTRUCTIONS.

necessitated the amputation of one of his Where plaintiff was injured by a rear-end street car collision, while he was standing on legs a few inches below the knee, and this the rear platform of the car that was struck, I suit is brought to recover for such injuries. The grounds of the defense were that he was going inside the car," and that he knew guilty of contributory negligence in standing nothing about the runaway car until it struck on the platform of the car, and that he as the car he was in. sumed the risks to which his position ex- Plaintiff's witness Herford says that the posed him. The trial resulted in a verdict | car plaintiff was on was standing on Madiand judgment in favor of the plaintiff for son avenue, in front of Wegner's saloon, the $10,000, from which judgment this appeal fourth door from the northeast corner of was taken.

Madison and North avenues, and that he The record contains three exceptions to saw some one get on the car ahead of the the rulings of the court on the evidence, and plaintiff who went inside the car, and was one exception to the granting of the plain- about to take his seat when the accident tiff's two prayers, the rejection of the de- happened; that the conductor was in the fendant's first, second, third, fifth, sixth, sev- front part of the car, and had something in enth, ninth, tenth, and eleventh prayers, and his hand, and witness thought he was writthe overruling of defendant's special excep- ing; that he saw the runaway car pass the tion to plaintiff's prayers. The only excep-northwest corner, and saw plaintiff on the tions, however, relied on and pressed in this platform of the car that was struck ; that he court, are the excep ons to the ruling of the saw a man who came out of Wegner's saloon, court on the evidence, and to the granting get on after plaintiff, and that after witness of plaintiff's first, and the rejection of de- hollowed he jumped off ; that plaintiff could fendant's sixth, ninth, tenth, and eleventh have gotten inside the car and taken a seat; prayers.

that Rosenheim got on the car a few minutes Plaintiff testified: That "he ran to get on after plaintiff ; that. plaintiff was standing the car and got on, but, before he could throw on the left-hand side of the platform of the his cigar away or get inside, some one jump- car facing the motorman; that witness hol., ed on the rear end of the car, and hollowed lowed loud, and Rosenheim, the man who got and pulled the bell, and before he knew it on the car after the plaintiff, jumped off, there was an awful crash. The car was still but he could not say positively how long when he got on. His position was on the Rosenheim was on the car before he jumped back platform of the car facing the motor- off ; that he imagines that it was not more man, looking inside the car, about to walk than a couple of minutes “if it was that in. He did not have time to throw his cigar much”; that it was a very short time. away or get inside the car before some one Plaintiff's witness Zimmerman stated that jumped on and hollowed, and at the same he came out of Wegner's saloon and saw a time rang the bell, and before he knew it car coming down Madison avenue which stopthere was a crash." And on cross-examina- ped, and that he stepped on the car, and at the tion he said he ran back of the car and got same time plaintiff got on the car; that he, on because it was the last car that night go-witness, went inside the car, and, as he was ing down, and that he still had the cigar about to take a seat on the right side, he with him; that he did not have time to take looked around, and saw plaintiff standing on any position, and had just gotten on the car, the left-hand side of the rear platform, holdwas standing facing—"I was looking inside ing onto the rail; that the conductor was the car"—that he was standing on the plat- in the front part of the car, writing someform looking inside the car; that he guessed thing in a little book, but that there was no he was smoking; that he could not tell how one else in the car, and that about half a many people were in the car; that he saw minute later he heard some one jump up on the conductor, who was standing up in the the car and ring the bell, and he saw him front part of the car; that no one else was jump off again, and that then the crash came, there that he knew of; that the conductor and witness found himself in the front part was not on the back platform or at the back of the car where the conductor was; that door; that he did not have time to see how the car that he was on was at a standstill many people were in the car, which was not when he got on it, and, after it was struck, . crowded, and that "he guessed there was it went to about the middle of the square; plenty of room inside"; that he had been that there was plenty of room inside the car; around cars a good deal in Baltimore for 10 and that it was probably half a minute after years, but never knew of any notice or sign the plaintiff got on the car before Rosenheim in the cars warning people against standing got on the car and pulled the bell, and that in on the platform because it was dangerous, the meantime plaintiff was standing on the and that "those so doing assumed the risk,” platform holding to the rails, but that he but that he had seen signs prohibiting smok- "didn't know whether he was smoking or ing inside the car, and that he knew how to not." read; that he did not know whether it was Plaintiff's witness Brenner stated that he Rosenheim who hollowed, but that somebody and Rosenheim came out of Wegner's saloon; hollowed, and at the same time jumped on that Rosenheim was waiting to go downtown, and pulled the bell; that "everything was and that he was going east on North avenue; all confusion at the time," and that he, plain that they saw the car coming, and Rosen

and he presumed he got on the car, and wit-, jury resulted from the negligence of the de ness had gotten “diagonally across" Madison fendant, or the accident could have been avenue when he heard a shout, and, looking avoided by the exercise of ordinary care by back, saw plaintiff standing on the platform, the plaintiff, were confined to the evidence and Rosenheim pulling the bell rope, and be- produced by the defendant. As was said in fore he could realize what happened he saw the case of Lewis v. B. & O. R. R. Co., 38 another Madison avenue car coming, and Md. 588, 17 Am. Rep. 521: “The question in there was a crash which carried both cars as this and in all cases of the like kind is whethfar as the middle of the block; that the er the injury complained of was caused encrash came immediately after pulling the tirely by the negligence or improper conduct bell, and the car was either still or had very of the defendant, or whether the plaintiff so little headway; that after the accident the far contributed to the same by his own negli. platforms of the two cars were apparently gence or want of ordinary care and prudence smashed, and there was a tangle of the iron that, but for such negligence or want of care grating and the brake, “and plaintiff was and prudence, the injury would not have hapdown among them."

pened. In the first case, the plaintiff would The plaintiff produced other witnesses be entitled to recover-in the latter he would whose testimony was to about the same effect not, unless the defendant, by the exercise of as the evidence above stated, from which the care and prudence, might have avoided the jury could have found that at the time of the consequences of the plaintiff's negligence." accident the car on which plaintiff was in- While an injury may be sustained under such jured was either standing still or had just circumstances as, when shown, give rise to started, and that plaintiff was standing on the presumption of negligence on the part of the rear platform of the car; that there the defendant, the testimony adduced to show were very few people in the car; that the these circumstances may also disclose such plaintiff had an opportunity to go inside the evidence as will justify the court in saying, car; and that, if he had done so, instead or the jury in finding, that the plaintiff was of remaining on the rear platform, he would guilty of such contributory negligence as de not have received the injuries for which he feats his right of recovery. Without meaning now seeks to recover.

to say as a matter of law that the testimony Defendant proved by its witness Glenn produced by the plaintiff shows that he was that he was conductor on one of the defend- tain evidence from which the jury could have

guilty of contributory negligence, it does conant's cars, and saw the accident in which the found that the plaintiff had the opportunity plaintiff was injured; that he had been at to go inside the car, and that, instead of dowork on the street cars for 14 or 15 years ing so, he remained on the platform, and previous to the accident; that he took the car plaintiff was on from the place of the ac- this evidence he was negligent, and that but

that under the circumstances disclosed by cident back to the barn; that that car and for such negligence on his part he would not all other cars of the defendant had posted have been injured. Notwithstanding the juon them a sign forbidding people to ride on the steps or rear platform of the car, and ry may have so found, yet under the instruc

tions contained in the plaintiff's first prayer stating that those who did so did it at their they were required to find for the plaintiff, own risk; that these notices had on them, in unless the defendant showed that the injury big red letters at the top, the word “Warn- did not result from its negligence, or that it ing."

could have been avoided by the exercise of Plaintiff's first prayer is as follows: "If ordinary care on the part of the plaintiff. In the jury believed that the plaintiff was a pas- the case of Phil. & W. R. Co. v. Hand, 101 senger on one of the defendant's cars, and Ma. 238, 61 Atl. 285, this court, in condemnwhilst being carried therein was injured by a ing a prayer which told the jury that they collision between that and another of the “were not entitled to presume that the plaindefendant's cars while moving on the same tiff was guilty of negligence, but that fact, track, then the presumption is that the in- if relied upon by the defendant, must be jury resulted from the negligence of the de- proved by the defendant by preponderating fendant, and the plaintiff is entitled to re- testimony,” said: “Contributory negligence cover, unless the defendant shows that the will defeat a plaintiff's action. It can, there said injury did not result from its negligence, fore, make no possible difference whether or that the accident could have been avoided that negligence is proved by the plaintiff or by the exercise of ordinary care on the part by the defendant. It is its existence, and not of the plaintiff.” By this instruction the ju- the party by whom its existence is proved, ry were told that, if they found the facts that is material. It is the thing itself that stated in the prayer, the plaintiff was enti- defeats the action, and not the mere accident tled to recover, unless the defendant showed that it happens to be proved by the one or either that the injury did not result from its the other of the opposite parties. It is just negligence, or that the accident could have as complete a bar to the action when its presbeen avoided by the exercise of ordinary care ence is revealed in the evidence introduced on the part of the plaintiff. In other words, by the plaintiff as it is when disclosed in the

« PreviousContinue »