cident appears in the testimony of the appellee; and what he said was this, after having testified as to the boarding of the car by his brother and McLuckie: "Then they got on, I just reached up and was taking hold and that car was started, and I could not get in for my brother and the others in front of me. McLuckie was in front. I was waiting on the crowd to push in. I had a bucket on my left arm. The bucket struck first, my head next, and I don't remember anything more." Then upon cross-examination he said: "The pole hit my body. I was squeezed between the car." He was asked on cross-examination if there was "not plenty of chance, standing there on that step, to stand in so that you would not hit anything," and answered, “I was in far enough, but my bucket struck and dragged me back to the pole. My bucket struck the pole." It was not so testified in terms, but it appears from the evidence of the appellee, that when he got upon the step of the car he was facing towards the car, with his back to the side of the track upon which the pole stood, and with his right side towards or in the direction of the pole, with his bucket on his left arm. The evidence sbowed that he was struck by the pole on the back of the head to the left. As the doctor, who attended him, described it: "Posterior aspect, left-hand side." As to his situation when the car started the appellee testified: "Q. You got upon the step? A. Yes, sir. Q. You had a bucket in your hand? A. On my arm. Q. You had your hand through? A. Yes. Q. You were on the step? A. With one foot. I was trying to get to the next step above." He further said on cross-examination that he had his "hands on the bars"; that he was pushing against his brother trying to get in the car. When examined in chief he said: "I tried to get up on the car fully. When I had the holt I tried to push in. The bucket being on my left arm it pulled me back." It appears, then, from the appellee's own testimony that when the car started he was on the step of the rear platform of the car, facing towards the car, with his hands on the bars, his bucket on his left arm with his hand through, pushing against his brother who was upon the platform. By no possibility in that situation could either his body or his bucket have come in contact, as the car proceeded, with a pole over seven inches away from the side of the car. To bring him into collision with the pole something must have occurred to disturb or change the situation between the time the car started and the contact with the pole. There is in this proof, as has been said, no direct evidence that the position of the appellee, as he described it, was changed or affected by the starting of the car; and the testimony alluded to, unqualified as it is, affords no rational inference that the starting of the car changed his position from one of safety upon the step to one which would bring him into the collision that inJured him. The evidence also shows there

was no other act on the part of the servants of the appellant, as the car traversed the 136 feet to the place of the pole, that could have such effect. We think the appellant's first prayer should have been granted. This conclusion makes it unnecessary to discuss any others that were the subject of the appellant's exception. Allusion has been made to the fact that one of the appellee's prayers had been conceded. This conceded prayer related only to the burden of proof upon the plaintiff, is not inconsistent with, and does not embarrass, the ruling here upon the first prayer of the appellant.

It follows from what has been said that the judgment below must be reversed. Judgment reversed, with costs to the appellant, without awarding a new trial.

(102 Md. 110;

PHILADELPHIA, B. & W. R. CO. v.
ALLEN.

(Court of Appeals of Maryland. Nov. 16, 1905.)

1. CARRIERS-CARRIAGE OF PASSENGERS-DEGREE OF CARE REQUIRED BY CARRIER.

The degree of care a carrier owes to its passengers is the exercise of the utmost care which human foresight can exercise, though it is not an insurer of the safety of the passengers. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1087-1106.]

2. SAME-BREACH OF CARRIER'S DUTY--CAUSE OF ACTION.

The breach of duty by a carrier to its passengers constitutes the cause of action for an injury to a passenger resulting therefrom, and the facts evidencing the breach are not the breach, but merely the facts which prove that a breach has occurred.

3. PLEADING-ALLEGATION OF FACTS-SUFFI

CIENCY.

A declaration which sets forth the facts constituting the cause of action, without detailing the circumstances constituting the evidence of them, is sufficient.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 31.]

4. CARRIERS-INJURY TO PASSENGER-DECLA

RATION.

A declaration, in an action against a carrier for injuries to a passenger, which alleges that the carrier "negligently and unskillfully conducted itself in carrying plaintiff and in managing the said railroad and the car and train in which plaintiff was a passenger," and that he was thereby injured, sufficiently speci-. fies the particulars of the carrier's negligence, at common law and under Code Pub. Gen. Laws 1904, art. 75, § 24, subsec. 36, giving a form for a declaration in an action for injuries received by a passenger, and declaring that the same may be changed to adapt it to other cases by "changing the allegation as to the cause of the accident."

Appeal from Circuit Court, Talbot County: James A. Pearce and Wm. R. Martin, Judges. Action by Robert J. Allen against the Philadelphia, Baltimore & Washington Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The following is the declaration in the action:

"State of Maryland, Cecil County-to wit:

Robert J. Allen, by his attorney, Albert Constable, sues the Philadelphia, Baltimore & Washington Railroad Company, for that the defendant is a corporation possessing and operating a railroad from between Bridgeville and Seaford, and was a carrier of passengers from said Bridgeville to said Seaford for reward to the defendant; and the plaintiff became and was received by the defendant as a passenger, to be by it safely and securely carried upon said railroad on a journey from said Bridgeville to said Seaford, for reward to the defendant. Yet the defendant did not safely and securely carry the plaintiff upon said railroad on said journey, and so negligently and unskillfully conducted itself in carrying the plaintiff upon said railroad on said journey, and in managing the said railroad and the car and train in which the plaintiff was a passenger upon the said railroad on the said journey as aforesaid, that the plaintiff, while in the exercise of due care upon his part, was thereby thrown down and wounded and injured, and incurred loss of time and expense in and about the care of his wounds and injuries. And the plaintiff claims twenty thousand dollars. Albert Constable, Plaintiff's Attorney."

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, SCHMUCKER, and JONES, JJ.

L. Marshall Haines, for appellant. Albert Constable, Jr., for appellee.

MCSHERRY, C. J. The only question which is before the court for decision on this record arises on the plaintiff's demurrer to the defendant's third plea. The plea is undoubtedly bad and the demurrer to it was properly sustained; but the contention of the defendant, the appellant here, is that as the demurrer mounted up to the first error in the pleadings, and as the declaration is insufficient, because indefinite and vague, the trial court should have looked back to the declaration and should have held it bad, instead of striking down the third plea. So the ultimate and single inquiry presented is this: Is the declaration sufficient in law?

The declaration is brief, and will be found set forth above. The suit is between a passenger and a carrier to recover damages for a personal injury sustained by the former in consequence of the alleged negligence of the latter whilst transporting the plaintiff over its railroad. The objection to the declaration is that it fails to specify the particulars wherein the negligence of the railroad company consisted, and was therefore too uncertain to apprise the defendant of the precise act of negligence upon which the plaintiff relied to sustain a recovery. This objection is more of an academic than a practical one in this case; because, had the declaration been so vague as not to inform the defendant of the facts constituting the cause of action, the defendant would have

surely demurred directly to it, instead of interposing several pleas, and would not have gone into a trial lasting five days before a jury on the issues of fact joined on those pleas, and would not have delayed until reaching this court before questioning the sufficiency of the narr, on the ground of the insufficiency of its averments. It seems a little singular that the company, after contesting a case on its merits through all of its stages, and until the rendition of the verdict against it and the entry of the judgment thereon, should fail to discover until the trial had ended and the record was in this court what neglect of duty it was charged with. There is no pretense that by reason of the vagueness of the narr's allegations the company was deprived of an opportunity to present any defense it might have had; and it is not even suggested that, if a new trial were awarded and the narr were amended so as to set forth more specifically the cause of the injury, the railroad company would be any more definitely apprised of the facts relied on to sustain a recovery than it was when it filed its pleas, or that it would be, in consequence of such an amendment, better prepared to shape its defense. The question before us is, therefore, not a practical one but, as it is raised, it must be disposed of.

As we have said, this is a case between a passenger and a carrier of passengers to recover damages for an injury sustained by the passenger in consequence of the negligence of the carrier during the period the above-named contractual relation existed between them. The degree of care required by such a carrier and the precise duty which it owes to such a passenger is clearly defined in the law. The carrier owes to the passenger the exercise of the utmost care and diligence which human foresight can use, though not an insurer of the safety of the passenger. Balto. City Pas. Ry. Co. v. Nugent, 86 Md. 349, 38 Atl. 779, 39 L. R. A. 161. A breach of that duty is negligence, and, if any injury results therefrom and is the consequence thereof, an action will lie at the suit of the person thus injured. It is the breach of the duty which is owed that constitutes the cause of action. The particular circumstances which evidence that breach are not the breach itself, but are merely the facts which prove that a breach of the duty that was owed had occurred. Now, in the structure of pleadings, even in their strictest forms, before the introduction of modern simplified systems, it was a most important principle of the law of pleading that although any particular fact might be the gist of a party's case, and though the statement of it was indispensable, still in alleging the fact it was unnecessary to state such circumstances as merely tended to prove the truth of the fact alleged. The dry allegation of the fact, without detailing a variety of minute circumstances which constituted the evidence of it, was sufficient. 1 Chitty's Pl. (8th Am. Ed.)

lic General Laws: "We think it clear the orphans' court had jurisdiction of the matter presented by the petition, for it would be impossible to superintend distribution of the estate without the authority to determine what was to be distributed, and this necessarily involves the questions as to what are assets, and where there is a will, and who are the legatees, and what is given them by the will." Similar views as to the extent of the powers of that court in reference to the accounts of executors and the distribution of estates of deceased persons have been expressed by us in Alexander v. Leakin, 72 Md. 202, 19 Atl. 532; Macgill v. Hyatt, 80 Md. 256, 30 Atl. 710; Hoffman v. Hoffman, 88 Md. 60, 40 Atl. 712.

The order appealed from must therefore be reversed, and the case remanded for further proceedings in accordance with this opinion. Order reversed, with costs, and case remanded for further proceedings in accordance with this opinion.

(102 Md. 119)

KENNEWEG v. ALLEGANY COUNTY COM'RS.

(Court of Appeals of Maryland. Nov. 16, 1905.)

1. CONSTITUTIONAL LAW-LEGISLATIVE POWER-SCOPE.

The General Assembly, having all legislative power, except as limited by the federal and state Constitutions, has power to enact a primary election law, unless deprived therof by the Constitution.

2 ELECTIONS-PRIMARY ELECTIONS-STATUTES

-VALIDITY.

Const. art. 3, § 42, providing that the General Assembly shall pass laws for the preservation of the purity of elections, does not confer legislative power, but is a mandate to execute a power existing independently thereof, and does not deprive the Legislature of the power to pass a primary election law. 3. SAME.

Acts 1904, p. 870, c. 508, providing for the bolding of primary elections in a certain county for the nomination of candidates for public office, is not, by reason of section 112 (page 875), requiring candidates for nomination to pay a fee to be used exclusively in defraying the expenses of holding the election, void because undertaking to add a property qualification for holding public office not contained in the Constitution; the imposition of the fee not being the imposition of a property qualification on the candidates.

4. CONSTITUTIONAL LAW-POWERS OF LEGIS

LATURE.

The law is not void, as contrary to public policy, because public policy, without having its foundation in the Constitution, cannot restrain the legislative authority of the General Assembly.

5. SAME-EQUAL PROTECTION OF LAWS.

The law does not, by reason of section 105, which provides that the candidates nominated by the two political parties having the highest votes cast for the highest state office at the last general election shall be nominated by direct vote, and the party casting the highest number of votes shall hold its primary on the first Saturday of September, and the party casting the next highest number of votes shall hold its primary on the first day of registration prescribed by law, deny to one political party the

equal protection of the law, in violation of the fourteenth amendment to the federal Constitution, because a political party has no inherent right to insist that all parties shall hold their primaries on the same day, and both parties are treated alike.

6. ELECTIONS-CONSTITUTIONAL

PROVISIONS.

The law is not invalid by reason of section 111 (page 875), whereby the nomination of the candidates of the minority party may, by a dishonest administration of the law, be postponed until a day or two before election, and the candidates thereby excluded from the official ballot.

7. CONSTITUTIONAL LAW-EQUAL PROTECTION OF LAWS.

The General Assembly has the power to pass a law regulating the primaries of the numeric ally stronger parties only, and excluding from its provisions the smaller parties.

8. COUNTIES-EXPENSES-PRIMARY ELECTION -LEVY OF TAX BY COUNTY COMMISSIONERS.

Acts 1904, p. 870, c. 508, § 105, requires the board of election supervisors to provide, for the primary elections provided for in the act, the voting booths, ballot boxes, stationery, etc., as used for general elections. Section 109, p. 872, declares that the ballot boxes used at the primaries shall be provided by the board of election supervisors and shall be delivered to the primary election board at the same time as the other paraphernalia provided for. Code Pub. Gen. Laws 1904, art. 33, §§ 2, 5, provide that the necessary expenses incurred by the supervisors shall be paid by the county commissioners. Held, that the county commissioners must levy a tax to pay the indebtedness incurred by the supervisors in holding primaries. 9. EQUITY-JURISDICTION.

Under Code Pub. Gen. Laws 1904, art. 16, § 102, providing that courts of equity shall not give relief in any cause wherein the original debt does not amount to $20, a court of equity has no jurisdiction of a suit praying for an injunction to restrain the collection of a tax amounting to about 66 cents.

10. INJUNCTION GROUNDS OF RELIEF-INJURY ALREADY SUSTAINED.

Equity will not grant an injunction to restrain the levy of a tax to defray the expenses incurred in holding a primary election, under Acts 1904, p. 870, c. 508, where, before the bill was filed, the levy had been made and probably most of the sum levied collected, and the primaries and the general election, at which the candidates selected at the primaries had been voted for, had been held.

Appeal from Circuit Court, Allegany County, in Equity; A. Hunter Boyd and Robert R. Henderson, Judges.

Suit by Christian F. Kenneweg against the county commissioners of Allegany county. From a decree dismissing the bill, complainant appeals. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

Irvine R. Dickey and W. C. Devecmon, for appellant. A. A. Doub and Benj. A. Richmond, for appellees.

McSHERRY, C. J. The bill of complaint which inaugurated this proceeding was filed by the appellant against the appellees on the equity side of the circuit court for Allegany county on the 28th day of April, 1905. It was demurred to. The demurrer was sustained. The bill was dismissed, and from that decretal order the pending appeal was