delivered the following dissenting opinion:
It has been so often decided by this Court,- that the question of negligence is, as a general rule, for the determination of the jury, from the facts in the case, that it seems to be superfluous to undertake to restate it.
The proposition is a plain one, that where there is any conflict of evidence, it is for the jury to decide, and not the Court.- The relative duties of the Court, in such cases, and those of the jury, are best discharged where the Court in plain and intelligible terms defines for the jury the standard by which to apply the evidence, leaving to them to determine the question according to their judgment.
The cases where questions of this sort have arisen, were fully and ably reviewed by the Judge who delivered the opinion in the very recent case of Dougherty, 36 Md., 366.
Upon examination it will be found, in the multiplicity of cases brought here for review, there is only one where the Court undertook to deviate from the general rule, to submit the question to the jury, and to decide the question of negligence as matter of law. That; was the case of the Baltimore City Railway vs. Wilkinson, 30 Md., 226. In that case, the regulations of the Railway, prohibited persons from getting on or off the front end of the car. It was a peculiar case, and the Court say, the question of negligence is a legal question for the Court to decide, and was unlike the case where the facts from which negligence is to be inferred, are controverted, and where no certain legal rule or standard can be laid down, and in which the question of negligence is necessarily to be submitted' to the jury. There being really no dispute about' the fact, the Court decided a pure question of law, the violation of a regulation of the Company, announcing at the same time the existence of the general rule.
*603In'this case there was much contrariety of testimony, and the facts as to the conduct of the defendant, its alleged violation of the city ordinance, whether there was or not an engine on the train of cars, and the length of the train — -were there any signals — whether the train was stationary, and for what length of time — whether there were proper employes in charge of the cars — whether persons were passing over or under the cars, on the usual passway across the street — whether the ends of the train could be readily seen from the point whore the accident occurred- — -the conduct of the plaintiff1 — -whether grossly negligent of his safety, or merely incautious — whether by ordinary prudence on the part of the defendant, in having a person stationed at the crossing, to warn travellers of the danger of attempting to cross ; — were all questions to be weighed and considered by the jury, in reaching a reasonable conclusion as to where the fault was, that directly occasioned the accident.
There is no distinct and uncontroverted fact, that the Court can at once pronounce to be conclusive evidence of the question of negligence.
The three prayers of the defendant were objectionable, because they withdrew from the determination of the jury the question of negligence.-
The instruction given to the jury in the second prayer of the defendant, seems to me to be unprecedented, and outside of any rule recognized by any law that I am aware of. To say nothing of its interference with the duty of the jury, it is entirely abstract, speculative, and puts the jury upon the enquiry, as to a mere probable course of safety on the part of the plaintiff if he had adopted the specific line of conduct suggested by the prayer — such an investigation is utterly foreign to the issues regularly before the jury.
It might as well have undertaken to instruct the jury upon any other hypothesis of probabilities not in the least *604germane to the legitimate subject for their investigation and decision.
. The first prayer of the plaintiff, is immaterial..
The second prayer of the plaintiff furnished the jury with the true standard of care necessary to be employed by both'parties, and ought to have been granted.
It is substantially the same as that affirmed by this Court in giving the first instruction in Trainor’s Case, 33 Md., 542.
The plaintiff's third prayer ought to have been granted. It is to the same effect as the second prayer in Trainor’s Case, ruled to be right by this Court.
The fourth prayer of the plaintiff, as to-the measure of damages, ought not to have been refused.
The plaintiff’s fifth prayer, although somewhat inartificial, embraces a correct view of the duties and responsibilities of the defendant, which constituted a material element in the question of negligence. Where a railroad company does not conform to legal requirements, and disregards the city ordinances, and the fact is established, it is responsible for any accident occasioned by its instrumentality, unless the injured party was also in fault. Miller’s Case, 29 Md., 252.
The plaintiff’s seventh prayer, was much like the defendant’s second prayer, at least speculative and not pertinent to the-true enquiry before the jury.
The eighth prayer of the plaintiff was objectionable, in ignoring altogether the question of contributory negligence on the part of the plaintiff. The question of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff, is essentially one of fact, - for the consideration of the jury, and it is exceptional for the Court to undertake to decide it as matter of law.
There is danger of commingling the relative duties of Court and jury in interfering with such questions. When *605the Court lays down the standard, it is quite as competent for the jury to determine such question as the Court. Arguments derived from supposed prejudices and feelings of the jury, cannot be considered in such an enquiry; if there is any defect in that quarter the Court has no power to correct it, except in the exercise of their undoubted authority to grant a new trial, where the case is one authorizing and requiring such interposition.
That, however, is a matter for the determination of the Court below, and is not a subject of appellate review.
As to the respective duties of Court and jury, I refer to the dissenting opinions in the case of Tyson vs. Tyson, 37 Md., 567.