much, then, as the negligence of the plaintiff directly contributing to the happening of the injury sustained bars a recovery, it would seem a priori to follow that it is absolutely of no consequence by which party to the suit that negligence is proved. Consequently it was error to instruct the jury that to be a defense such negligence must be proved by the defendant."

platform of the car after he had a reasonable opportunity to go inside, and that he was injured because of his position, their verdict should be for the defendant. In other words, these prayers asked the court to say as a matter of law that if the plaintiff was on the platform of the car after having had an opportunity to go inside the car, and was injured in consequence of his being there, he Appellee's counsel cites and relies upon the was guilty of contributory negligence, and case of N. Balto. Pass. Ry. Co. v. Kaskell, 78 cannot recover. In the case of Yorktn. T. R. Md. 517, 28 Atl. 410, where a similar prayer v. Cason, 72 Md. 377, 20 Atl. 113, where the was approved by this court. While plaintiff's plaintiff was riding on the front platform of first prayer in Kaskell's Case does conclude a street car, contrary to the rules of the comby requiring the defendant to show contribu-pany, which he knew, or ought to have known tory negligence, etc., the facts of that case of, and fell from the car and was injured, the are entirely different. There the plaintiff was injured by reason of having his hand around the window post of the street car. The car on which he was riding left the track, and finally came in contact with a box car of the Western Maryland Railroad, mashing the plaintiff's hand. Plaintiff's evidence was that the car was crowded, passengers were standing in the aisle, and the car was jolting so that the passengers with difficulty retained their seats, and that he had to take hold of the window under the circumstances to hold himself on; while the defendant's testimony was that, before and at the time of the accident, he had been sitting with his elbow resting on the window sill, with his hand "clasped around the post of the window, the back of his hand being outside the car." Therefore, according to plaintiff's evidence, he was forced by reason of the defendant's negligence to take hold of the window, and he was not guilty of contributory negligence, while defendant's evidence tended to show that he was, Under such circumstances, plaintiff's evidence showing that he was free from blame, it was necessary for the defend-settled "that, if a person voluntarily takes an ant to show that he was negligent and the instruction as applied to the record in that case is not at all in conflict with the views we have expressed in regard to plaintiff's prayer in this case.

The defendant asked the court, by its ninth prayer, to instruct the jury that, "where there is ample room inside the car, a passenger who, for his own convenience, stands upon the platform, assumes all the risk of being upon the platform," and that if they found that the plaintiff had a reasonable opportunity to go in the car, but failed to do so, and that he was injured in consequence thereof, their verdict should be for the defendant; and by their tenth prayer that if they found that he "got upon the car, passed the doorway and took a position upon the platform, * * * then he assumed the risks incident to such position," and, if they further found that he was injured by reason of his being in such position, their verdict should be for the defendant; and by their eleventh prayer that the platform of the car is a more dangerous place than the inside of the car, and if they

court, after citing the case of Balto. City
Pass. Ry. Co. v. Wilkinson, 30 Md. 232, as
holding "that a regulation forbidding passen-
gers to get on and off any car by the front
platform was reasonable, and that knowingly
to violate it was conclusive evidence of negli
gence on the part of the passengers," said:
"Had he been inside the car, where he ought
to have been, the injury would not have been
sustained. His own voluntary choice placed
him in an exposed position, and that position
rendered the injury possible. It was a posi-
tion not provided for him to occupy, and
even a careless observer must know that it
was the most dangerous one to take. He
thought proper to make an experiment under
circumstances of peril open and known to
him, which he could have reasonably avoided,
and it is no injustice that he is required to
bear the consequences of his own act."
the case of State, Use of Miller, v. Western
Md. R. Co., 105 Md. 33, 65 Atl. 635, where
the party killed was voluntarily riding on the
platform of a railroad car at the time of the
accident, the court held the rule to be well

*

In

exposed position upon a train, he himself incurs the special risk of that position. In this case the risk was so obviously dangerous that a prudent man would not think of incurring it. In the case at bar, if the deceased had gone into the passenger or baggage car, and not remained on the bumper or platform, he would not have been killed. He voluntarily selected a place of danger, and remained there until he was killed." In both of these cases the court held that the conduct of the party injured as to which the proof was clear, and as to the nature of which there was no room for ordinary minds to differ, amounted in law to contributory negligence. And there are numerous cases elsewhere which hold that a party who rides on the platform of a train or a rapidly moving street car, in the absence of some good excuse for so doing, is guilty of negligence, and among them is the case of Thane v. Scranton Traction Co., 191 Pa. 249, 43 Atl. 136, 71 Am. St. Rep. 767, referred to by the appellant, where the Supreme Court of Pennsylvania, recognizing that the previous decisions of that court had es

form of a moving railroad train was negli- | as a matter of law that he was guilty of congence per se, but that standing on the plat-tributory negligence, or that in being on the form of an ordinary horse car was not negli- | platform, after having had an opportunity to gence per se, but raised a question for the go inside the car, he assumed the risks of jury, and held that "the increase speed upon the collision which occurred, and these prayelectric passenger railway lines, with its re- ers were therefore properly refused. In the sultant danger, now approximates to that of case of Strauss v. United Ry. Co., supra, this steam railroads," and that where a passen- court said: "If the manner in which he ger, without any special reason for doing so, (plaintiff) stood be not fixed by clear and remains on the platform of a moving trolley uncontradicted evidence, the court cannot say car, he is guilty of negligence per se. as a matter of law that the appellant was guilty of contributory negligence. Again, what danger then existed against which by the exercise of ordinary care he ought to have guarded himself. He should not be required to predicate danger, unless there was something in the situation known to him, or which he could have known by the exercise of reasonable care, from which he was or ought to have been warned of his peril. Here it seems he stood up at the time the speed of the car was about to be increased. He should have known that when that happened certain irregularities of motion would be experienced. It cannot be doubted that he was reasonably prudent in taking an upright position as against the usual expected increase of speed. But the only evidence is that the lurch of the car was 'sudden, unexpected, and unusual.'"

The general rule as stated by 3 Hutchinson on Carriers (38 Ed.) § 1174, is that: "Where the question whether the negligence of the passenger did, in fact, proximately and naturally contribute to the injury depends for its determination upon conflicting testimony, it must be submitted to the jury as a question of fact. And although the facts have been ascertained, if they are such that fair-minded men might honestly come to different conclusions as to the injury sustained by the passenger having been contributed to by his own carelessness or imprudence, the question of his contributory negligence must be determined as one of fact by the jury." And from the decisions of this court it may be said that "unless there is some prominent and decisive act in regard to which there is no room for ordinary minds to differ," and unless the conduct of the plaintiff relied on as amounting in law to contributory negligence is established by clear and uncontradicted evidence, the case should not be withdrawn from the jury, and that, "when the nature of the act relied on to show contributory negligence can only be determined by all the circumstances attending the transaction, it is within the province of the jury to characterize it." McMahon Case, 39 Md. 449; Lake Roland Co. v. McKewen, 80 Md. 593, 31 Atl. 797; Cooke v. Baltimore Traction Co., 80 Md. 551, 31 Atl. 327; Baker v. Md. Coal Co., 84 Md. 19, 35 Atl. 10; Winkelman & Brown Co. v. Colloday, 88 Md. 91, 40 Atl. 1078; Strauss v. United Ry. Co., 101 Md. 497, 61 Atl. 137. In this case there is not only a conflict of evidence as to the conduct of the plaintiff relied on as constituting contributory negligence, but the nature of the act, so relied on, can only be determined by considering all the circumstances attending the accident, and it was for the jury to say under all the circumstances whether the plaintiff in being on the platform, after he had had an opportunity to go inside the car, was guilty of contributory negligence. According to the evidence, the car was either standing still, or, if it had started, it had not "moved perceptibly," and the plaintiff was either in the act of entering the car when the accident happened, or had stopped on the platform momentarily, or for the short time mentioned in the evidence, with a view of getting inside as soon as the car started, or with the intention of remaining there. Under such circumstances,

The doctrine of assumed risks or waiver of right of action, which has most frequent application to the relation of master and servant, while theoretically distinct, in its practical application to ordinary negligence cases between passengers and carriers, not affected by any contractual relation other than the implied contractual obligations between them, necessarily, it would seem, involves the doctrine of contributory negligence; for, unless the position voluntarily taken by a passenger exposes him to dangers that are obvious and patent, or such as he knew of, or by the exercise of ordinary care ought to have anticipated, he cannot in justice in case of resultant injury be held guilty of contributory negligence, or to have assumed the risk of an injury he had no reason to anticipate, or to have waived his right of action therefor. On the other hand, if the danger to which he voluntarily exposed himself was obvious and patent, or such as he knew of, or by the exercise of ordinary care ought to have anticipated, and injury follows in consequence thereof, then he was guilty of contributory negligence, and must be held to have assumed the risk of his position. And that is what the learned judge meant in Strauss' Case, which is in entire accord with the views expressed in Casey's Case and in Miller's Case.

By the defendant's sixth prayer the court was asked to instruct the jury that if the plaintiff took an exposed and dangerous position on the car, and he was injured by reason of his taking such pósition, he could not recover. This prayer entirely ignores the plaintiff's own testimony that he got on the plat

of the counts thereof, and for plea to each | tained not more than 1 per cent. of butter of said counts says that he is a citizen of the state of Maryland and a resident of the city of Baltimore, and that he was at the times mentioned in said indictment, since has been, and now is regularly engaged in carrying on wholesale and retail grocery business in the city aforesaid under the firm name of Nich. Reiter & Co., said firm being a copartnership and composed of the copartners as follows, to wit: Nicholas Reiter and Ambrose J. Reiter. That in the conduct of said business, said firm regularly had and kept in stock, and offered for sale and exposed for sale, certain cans marked and labelled in manner and form as follows, to wit:

SKIMMED
Square H Brand
Condensed

MILK

fat. That, after obtaining pure skimmed milk by separating and removing the cream from pure milk as aforesaid, the said pure skimmed milk was and is condensed by evaporating therefrom a considerable quantity of its water fluid, and certain proportion of pure cane sugar was and is added thereto for the purpose of preserving and keeping the same pure. That so prepared and produced as aforesaid the skimmed milk condensed or condensed skimmed milk was and is put in cans and sold to the trade and to the public generally as 'Square Brand Condensed Skimmed Milk.' That the product of milk commonly known as 'condensed milk' is classified and defined in science and in trade as pure milk from which a considerable quantity of water has been evaporated and to which sugar has been added, and the product of milk known as 'condensed skimmed milk' is classified and defined in science and in trade as skimmed milk from which a considerable portion of water has been evaporated, and to which sugar has been added. That the can of condensed skimmed milk as sold by the traverser as in said indictment charged was sold by the defendant on the 19th day of August, 1908, to Charles Knell, in response to a request for a can of condensed milk square brand and the contents of said can was condensed skimmed milk manufactured and produced from pure skimmed milk as aforesaid, and plainly and conspicuously labelled and marked as condensed skimmed milk, with letters rang

of an inch square to one-half of an inch square and the skimmed milk condensed in said can contained the following constituents, to wit: 74.90 per cent. of total solids; 1.68 per cent. of ash; 12.24 per cent. of milk sugar; butter fat less than 1.10 of 1 per cent.; proteids 15.95 per cent; cane sugar 45.03 per cent. That the process of condensing skimmed milk in cans was first perfect

"That the said cans so marked and labelled as aforesaid contained in a condensed or solid form a certain product of pure cow's milk, commonly known in commerce and in trade as 'skimmed milk condensed' or 'condensed skimmed milk.' That the said condensed skimmed milk contained in said cans, as aforesaid, was and is pure skimmed milk from which a considerable portion of the water has been removed by process of evaporation, and the same skimmed milk was and is obtained from pure cow's milk by removing therefrom all, or the greater part of, the cream contained therein. That all the milk used to make the skimmed milking in size from approximately three-quarters so condensed in said cans as aforesaid was and is pure, clean, healthy, fresh, unadulterated, and wholesome milk within the meaning and intent of the laws of the state of Maryland, and in order to produce the said skimmed milk which was and is used to make the condensed skimmed milk manufactured and sold as the 'Square Brand Condensed Skimmed Milk,' as aforesaid, the manufacturer and proprietor of said branded and the manufacture and sale of condensmerely removed and removes the cream from the aforesaid pure, wholesome, and unadulterated milk by a mechanical process and device known as centrifugal separation. That after and in consequence of the removal of the cream as aforesaid a product of milk was and is thereby obtained which was and is recognized and classified as an article of good consumption known and designated as skimmed milk, and the said skimmed milk so produced, as aforesaid, was and is pure skimmed milk within the meaning and intent of the laws of the state of Maryland. That as a necessary result of removing the cream from the said milk, as aforesaid, all or the greater part of the butter fat was and is likewise removed from said milk, so that skimmed milk contains little or no butter fat, and the skimmed milk sold by the traverser as 'Square Brand Condensed Skim

ed skimmed milk in cans as an article of commerce and a food product was first begun in or about the year 1907, and prior to that time skimmed milk was not condensed and preserved for sale in small cans as aforesaid. All of which the said Nicholas Reiter is ready to verify.

"Wherefore the defendant prays judgment, and that by the court here he may be dismissed and discharged from the premises specified and contained in each of the said counts of the indictment."

This plea was demurred to by the state, and, the demurrer having been sustained, the traverser pleaded not guilty, was tried, convicted, and sentenced to pay a fine of $25. The only question presented by the record arises on the ruling of the court on the demurrer to defendant's plea. The contention of the appellant is that "condensed skimmed

is a definite and distinct product of milk, and ↑ med Milk,' in capital letters each of a size so recognized and classified in science and trade, that it is a valuable food product which was not known when the act of 1900 was passed, and that it is therefore not covered by section 235 of the Code. The plea admits that the condensed skimmed milk sold by the appellant was manufactured from milk from which the greater part of the cream had been removed, but the appellant insists that it is only the manufacture of condensed milk from milk from which the cream has been removed that is prohibited by the statute, and not condensed skimmed milk, as that product was not known at the time of the passage of the act. A glance at section 235 shows that the intention of the Legislature was not only to prevent fraud and deception from being practiced on consumers of condensed milk by prohibiting the sale of any product of milk, not manufactured from milk of the quality required, under the name of condensed milk, but to absolutely prohibit the sale of condensed milk manufactured out of milk not possessing áll the qualities required by the statute. This section does not say that condensed milk of the kind prohibited shall not be sold unless marked and branded as provided, but requires, as one of the means of preventing the sale of condensed milk prohibited by the section, that it shall be packed in the way provided with the name of the manufacturer stamped thereon. In other words, the primary object of this legislation was not to prevent fraud and imposition, but to prohibit the sale of an article deemed by the Legislature either injurious to health or lacking some of the qualities of healthy food. If the language of the act is broad enough to include condensed skimmed milk, there is no force in the contention that the Legislature could not have intended the act to apply to condensed skimmed milk simply because it is an article of food not then known as the Legislature may unwittingly have prohibited the sale of an article of which it had no knowledge, or have purposely included in the prohibition an article known to it, but as to the value of which as an article of food it was not then fully advised.

It would seem, however, from the other legislation in reference to the sale of milk that the Legislature treated the regulations in regard to milk as including skimmed milk. Section 233 of article 27 of the Code of Public General Laws of 1904, after declaring what milk shall be deemed sophisticated, adulterated or unwholesome, including milk "from which a portion of the cream has been taken," provides: "but nothing in these sections shall be construed as prohibiting the addition of sugar in the manufacture of condensed or preserved milk, or to prohibit the sale of pure skimmed milk, when sold as such, and from cans plainly and conspicuously marked with sign or placard 'Skim

not less than one inch square." The obvious meaning of that section is that milk from which a portion of the cream has been taken or skimmed milk is "sophisticated, adulterated, or unwholesome" milk, and cannot be sold except in the way provided by the seetion. So when, by section 235, the Legislature provided that no condensed or preserved milk should be manufactured or sold, unless the same be manufactured from milk "from which the cream has not been removed either wholly or in part," it meant that no condensed or preserved milk manufactured from skimmed milk should be sold, etc. Now, the plea admits that the article sold, called "condensed skimmed milk," was manufactured from milk from which the cream had been removed, or from skimmed milk, and unless we hold that the sole purpose of section 235 was to prevent fraud and imposition upon the consumers of condensed milk by the sale of other articles or products under the name of condensed milk, and that the Legislature did not intend to prevent the sale of articles manufactured from impure or unwholesome milk unless labelled and sold as condensed milk, it seems that the condensed skimmed milk offered for sale and sold by the appellant clearly falls within the prohibition of the statute, the plain object of which was in connection with sections 232, 233, and 234, to prevent the sale of impure and unwholesome milk, including skimmed milk, whether sold as liquid milk or condensed milk, unless sold under the restrictions specially provided. It is true that in one sense condensed skimmed milk is not condensed milk, nor is skimmed milk, in the same sense, milk, but it would require a narrow and unreasonable construction of these several sections of the Code to hold that while they declare skimmed milkthat is, milk from which the cream has been taken-impure milk, and prohibit the sale of it except under the conditions provided, yet by taking a "considerable quantity of water fluid" from it, and adding to it cane sugar, it can be sold without any restrictions whatever, notwithstanding the express provision that no condensed milk shall be sold that is manufactured from milk from which the cream has been removed. That the term "milk" may include in its general meaning milk that is not of the quality required by the Code is illustrated in section 233, where milk from which the cream has been taken

that is, skimmed milk-is excepted, and allowed to be sold in a certain way. In the case of Commonwealth v. Gordon, 159 Mass 8, 33 N. E. 709, the court held that "The word 'milk,' in Pub. St. 1882, c. 57, 'of the inspection and sale of milk,' is shown by section 7 to include milk from which no part of the cream has been removed, and we are of opinion that it is used as a general name. and in a sense broad enough to include cream. The offense under section 5 of hav