The Conowingo Bridge Company was incorporated by the Act of 1858, chapter 217. By its charter it was authorized to build and maintain a toll-bridge across the Susquehanna river at Conowingo, in Cecil County.
This is an action brought by Jacob Hedrick against the Bridge Company to recover damages for injuries he sustained while walking across the bridge. The case was tried in the Circuit Court for Cecil County before a full bench and a jury. The verdict was for the plaintiff and the defendant has appealed.
The questions presented by the record for our consideration arise upon the exception to the ruling of the Court upon the prayers. No other exception was taken during the trial below.
Defendant's bridge is a wooden, covered structure with a gate at each end. It consists of 10 spans of 100 feet each. The gates are in charge of two gate-keepers who sell tickets and admit travelers to the bridge. On the night or evening the plaintiff was injured, he left his home to go to Baltimore via. the Columbia and Port Deposit Railroad. The station of that road is located at Conowingo, on the Cecil side of the river. He says that he reached the toll-house at dark, bought a ticket from the gate-keeper, Mr. Stewart, and started across the bridge on foot carrying a satchel in his hand. It was so dark in the bridge that it was impossible to distinguish *Page 678 objects, the openings in the sides affording little or no light. When he got about half-way over he was run down and injured by a man riding a bicycle, who was going in the same direction the plaintiff was walking.
The witness Prigg, the bicycle rider, testified that the gate-keeper told him the way was clear and he got on his wheel and started across. He says he was not going at a reckless speed, but about five or six miles an hour; that the way he was looking he could have seen in front of him if there had been a light. Mr. Stewart the gate-keeper denied that he had told Prigg the way was clear, but admitted that he gave him no notice that the plaintiff was on the bridge. He and two other witnesses also testified that the evening had not sufficiently advanced to require lights in the toll-house and that it was light enough in the bridge to see objects and persons. It was also in evidence that the defendant furnishes lanterns which are kept at the toll-houses for the use of travelers; that there was no notice that lanterns would be supplied. It does not appear that a lantern was offered to the plaintiff or that he asked for one.
The plaintiff offered five and the defendant seven prayers.
All the plaintiff's prayers were granted except the first, and in the place of this rejected prayer the Court granted a substitute of its own. The defendant's seven prayers were all rejected; but the Court granted an instruction of its own as a substitute for the sixth. There does not appear to be any exception to the action of the Court in granting its substitute for defendant's sixth prayer. We will first consider the rulings upon the defendant's prayers.
By its first the defendant asked the Court to take the case from the jury, because there was no legally sufficient evidence of negligence on the part of the defendant or its agents; but we think the record discloses ample evidence — sufficient, certainly, to justify a submission of the case to the jury. In addition to the absence of any light on the bridge, it appears that the gate-keeper sold the witness Prigg, a ticket to cross the bridge without taking any precaution to protect the plaintiff *Page 679 in a place which he described as being so dark he could not see his hand before him. However, we do not consider it necessary to elaborate this question, because the defendant's counsel practically abandoned their contention in this respect at the hearing and do not insist upon it in their brief.
Defendant's second prayer asserts the legal proposition that negligence cannot be imputed to the defendant by reason of the absence of artificial lights on the bridge at the time of the injury. But whether the defendant was guilty of a want of reasonable care, that is to say, of negligence, in failing to provide lights is a question for the jury to consider in connection with all the facts of the case. Negligence, in a case like this, it has often been said, "is not so much a question of law as a question of fact, depending for its determination upon a consideration of all the attendant facts and circumstances."North. Cent. R.W. Co. v. Price, 29 Md. 440.
The third and fifth prayers of the defendant were also properly refused. Both of them undertake to separate the alleged negligence of Prigg in running over the plaintiff, from that of the defendant in failing to light the bridge. They assert the proposition that if the act of Prigg was the sole cause of the injury it necessarily follows that the plaintiff cannot recover as against this defendant. The error, however, consists in an effort to segregate the acts of the defendant from those of Prigg when it is apparent they are parts of one transaction. In a case like this, therefore, where there is evidence tending to prove want of care both on the part of the defendant and Prigg, it would only mislead and bewilder the jury to submit to them the question of remote and proximate cause. As was said by CRESWELL, J.: "It seems strange to say that A shall not be responsible for his negligence because B has been negligent likewise, C being the party injured." The Bernina, L.R. 12 Prob. Div. 58.
But this question has been so elaborately and ably discussed in the recent case of Washington Georgetown R'd v. Hickey,166 U.S. 522, that we will content ourselves by reference to it and citation from the opinion of the Supreme Court which *Page 680 was delivered by JUSTICE PECKHAM. The plaintiff in that case was injured (as was held by the Court) by the joint and concurrent negligence of a driver of a street car and the negligent lowering of the gates at a point where the street car line was crossed by a steam road. The Court was requested to instruct the jury that if they should find that the commotion and confusion which led to the accident were caused by the negligent lowering of the gates upon the street car, which the driver of that car had no reason to believe would be thus lowered, and if the driver could have crossed in safety but for such lowering, then the street car company was not responsible. There were other prayers offered by the defendant upon the same theory, namely, that the acts of the driver and those of the gate keeper could be properly separated; but the Court said: The vice in this contention "consists in the attempted separation into two distinct causes (remote and proximate) of what in reality was one continuous cause. It leaves out of view the action of the driver as to whether he was or was not negligent, provided the jury should say the accident would not have happened if the gates had not been improperly lowered. * * * This is an attempt to separate that which, upon the facts in this case, ought not to be separated. The so-called two negligent acts were, in fact, united in producing the result, and they made one cause of concurring negligence on the part of both companies. They were in point of time substantially simultaneous acts and parts of one whole transaction, and it would be improper to attempt a separation in the manner asked for by the counsel for the horse car company." And in the case of The Bernina (2)supra, LORD ESHER said: "If no fault can be attributed to the plaintiff and there is negligence by the defendant and also by another independent person, both negligences partly directly causing the accident, the plaintiff can maintain an action for all damages occasioned to him against either the defendant or the other wrongdoer."
We think, therefore, these two prayers we have been considering were properly rejected. *Page 681
Nor do we find any error in the refusal of the fourth and seventh prayers. They ask the Court to instruct the jury that the conduct of the plaintiff in going through the bridge when he knew it was not lighted made him guilty of contributory negligence asa matter of law. No doubt it may be properly said that these facts recited in these prayers are evidence to be considered by the jury, but we do not think that the conduct of the plaintiff was so reckless "as would leave no opportunity for difference of opinion as to its imprudence in the minds of ordinarily prudent men." Only such conduct as this on the part of the defendant would have justified the Court in directing a verdict for the defendant. B. O.R.R. v. Wiley, 72 Md. 40 and cases there cited. The record shows that the plaintiff was using the bridge as he and others had often used it before, and it would plainly be an invasion of the province of the jury for the Court to say under these circumstances, that he could not recover because of contributory negligence. In Co. Comrs. v. Broadwaters,69 Md. 534, it was held that neither the failure to carry a light on a dark night by one acquainted with the road, nor a knowledge of its defective condition is conclusive evidence of contributory negligence.
The sixth prayer was properly rejected, if for no other reason, because it submits to the jury to find that Prigg, was riding his bicyele in a reckless manner. We find no evidence of this in the record. He is the only witness who testifies as to the rate or manner in which he rode and he said he was going at "a good rate of speed, but not at a reckless rate" perhaps "five or six miles an hour" not over seven; that he "was in no break-neck hurry; that the way he was looking he could have seen in front if there had been a light, c."
The third and fifth prayers are open to the same objections in addition to the vice already pointed out. The Court's substitute for the sixth is free from objection.
In conclusion it only remains to refer briefly to the prayers granted at the instance of the plaintiff and the prayer which the Court substituted for the plaintiff's first prayer. *Page 682
The second, third and fourth prayers are based upon the theory that it is no defense to this action to prove that the negligence of Prigg was partly the direct cause of the injury. What we have said in the former part of this opinion shows that we are of opinion there was no error in granting these prayers. The Court's substitute for the first prayer we think was also properly granted. By it the jury were told that under the circumstances of this case it was the duty of the defendant in building, maintaining and managing said bridge, to exercise reasonable care that travelers paying tolls should cross the bridge safely. And that if they found that at the time of the injury to the plaintiff the bridge was not lighted by artificial means, and was so dark that it was impossible by the exercise of reasonable care to discern or observe other persons or any objects therein, and that while the plaintiff was walking across the bridge after having purchased a ticket from the defendant which entitled him to cross, "and while in the exercise of reasonable care on his part, he was run into and injured by a traveler riding on an unlighted bicycle, who had been admitted to said bridge by the gate keeper shortly after the plaintiff had been admitted thereto and without any notice to the rider of the bicycle or knowledge on his part, that the plaintiff was on said bridge, and before reasonable time had been given plaintiff to complete his passage, the plaintiff was entitled to recover — provided the jury shall further find that the defendant was guilty of negligence in not having said bridge lighted at said time, and in admitting said bicycle rider to said bridge as aforesaid, and shall further find that but for said negligence of the defendant the plaintiff would not have been so run into and injured."
The degree of care required of the defendant by this prayer is much lower than the law imposes on it and therefore the defendant cannot complain of it in this respect. In Washington, c.,Turnpike v. Case, 80 Md. 48, the present CHIEF JUDGE, delivering the opinion of the Court said: "The care and caution which a discreet and prudent individual would exercise if the risk were his own is not the care and caution required of a turnpike road or *Page 683 a bridge company which charges tolls for the use of its road or bridge. Such a corporation is held to a degree of care closer akin to that exacted of a carrier of passengers. The mere use of ordinary care in repairing a bridge would not exculpate the defendant if it had not by such care made the bridge safe." Having thus instructed the jury that the defendant was bound to exercise reasonable care to provide for the safety of persons using its bridge, the important question was whether the failure to light the bridge in connection with other facts mentioned rendered the defendant guilty of negligence. And this was a question for the jury. In the case of Com. v. Central BridgeCo., 12 Cush. 243, the bridge company was indicted for a neglect of public duty in not keeping the bridge in a safe and convenient condition by night as well as day. It was alleged that the unsafe condition of the bridge arose from the fact that there was a failure to keep it lighted at night. In the opinion of the Court delivered by C.J. SHAW, it is said: "Whether light in the night time was necessary to render it (the bridge) safe for all travelers, was a question of fact, and as such was left to the jury. * * * We think this instruction was right." And so it is well settled by this Court that in cases like this negligencevel non is a question for the jury. Thus in N.C. Ry. v.Price, 29 Md. 440, it is said: "It is not, however, the duty of the Court to draw inferences and make deductions from evidence. To do that falls within the well defined province of the jury. * * * Where the facts attending the transaction are at all complex or unusual in their character, the existence of negligence must be deduced as an inference from all the facts and circumstances disclosed." And it may be remarked that the prayers approved of in the case just cited leave it to the jury to find whether the injury sued for was caused by "the gross negligence" of the defendant. It seems to us that the substited prayer is free from objection. The only acts of negligence relied on were the failure to light the bridge and the act of the gate keeper in admitting Prigg to the bridge before the plaintiff had time to cross; and the jury are plainly told they cannot find for the *Page 684 plaintiff unless they find that it was negligence on the part of defendant in not having the bridge lighted and in admitting the bicycle rider as set forth in the prayer.
It follows that the judgment appealed from must be affirmed.
Judgment affirmed with costs.
(Decided November 20th, 1902.)