filed the following dissenting opinion:
This action was brought to recover for injury, sustained by the plaintiff below, occasioned by the alleged negligence of the defendant’s agents.
The nine prayers offered by the plaintiff, were rejected, except the ninth, as to the measure of damages: and the eight prayers of the defendant were granted.
By reference to the well settled principles applicable to the question of negligence, the rulings of the Circuit Court upon the various propositions presented by the respective parties must be determined.
The first prayer of the plaintiff rested his right to recover, upon proof of the negligence of the defendant, (the failure to exercise ordinary care, to prevent the plain*582tiff’s injury, was but another form of negligence) — without making his right to recover, depend upon there being no contributory negligence on his part.
The onus of the proof of negligence of the defendant, was on the plaintiff; but notwithstanding proof of such negligence, if it was shown that the plaintiff was guilty of contributory negligence,'immediately connected with the injury, he was not entitled to recover.
The proposed instruction was therefore partial and incomplete, and was very properly refused by the Court.
The plaintiff’s second and third prayers required the Court to decide upon certain conduct therein specified, and its legal bearing upon the relative duties of the parties, under the circumstances indicated.
Whether the want of ordinary care was the result of mistake, inadvertence, or misapprehension, on the one side or the other, that .afforded no sufficient justification for- its not being exercised.
Each party had the right to expect the exercise of such ordinary care on the other side, as ought to be used under the circumstances. Whether such care was observed by both parties, it was the province of the jury, and not the Court, to determine from a consideration of all the facts and circumstances, in connection with the conduct of the parties. The cases are few and exceptional where the Court will undertake to decide such question.
The fourth prayer of the plaintiff, proposed to relieve him from the consequences of any negligence on his part, by'casting the responsibility upon the defendant, if the plaintiff was not aware of the approach of the defendant’s locomotive in time to enable him to get out of the way.
His being unconscious of his danger, without any fault of the defendant, was his misfortune, and conferred upon him no right to claim damages from the defendant for his injury, if it was the result of his own mistake, or inadvertence ; and certainly ought not to be allowed to *583impose any greater burden of responsibility upon the defendant.
In any event, it could only constitute an element in the question as to the character of his negligence, or want of ordinary care, which was a matter, with all the circumstances of the case, for the consideration of the jury.
The instruction contained in the plaintiff’s fifth prayer might in some cases be very appropriate; its logical application to the facts of this case, is not perceived; in reference to which, it is a mere abstract and irrelevant proposition which might be misconceived by the jury— as modified by the Court, there can be no reasonable ground of complaint on the part of the plaintiff.
The sixth and eighth prayers of the plaintiff, are liable to similar objections as to his second, third and fourth prayers, because they sought the interference of the Court, to decide questions properly pertaining to the jury.
The seventh prayer of the plaintiff, independent of its being objectionable, in assuming that certain specified conduct of the parties constituted ordinary care on the one side, and the want of such care or negligence on the other, was defective in defining the negligence of the plaintiff, without the qualification, that it did not directly contribute to his injury.
It is undoubtedly true, that although the plaintiff may have been negligent, if his negligence did not directly contribute to his injury; but the defendant, by ordinary care, could have prevented it ; such negligence did not prevent his recovery. It is equally true, that the want of ordinary care on the part of the plaintiff would excuse the defendant, although it did not use ordinary care to prevent the injury, if the plaintiff’s negligence did directly contribute thereto.
The negligence of the plaintiff in such case, not contributing to the immediate cause of his injury, would not disentitle him to recover. Where the negligence of *584the party injured, has not immediately contributed to the accident, it is no defence to the action. The consequences cannot be apportioned, according to the negligence of the one or the other party. Taylor’s Ev., sec. 281. There was a mutual obligation on the parties to exercise ordinary care, fo guard against the effects of each other’s neglect. The want of ordinary care on the one side, afforded no excuse for its absence on the other. If the plaintiff, without ordinary care, did get on the road of the defendant, aDd there continue, and thus render himself liable to accident from the movement of the defendant’s locomotive, but such want of care did not directly contribute to his injury.; such conduct did not debar him of his right to recover, if the exercise of ordinary care on. the part of the defendant would have avoided it. B. & O. R. R. vs. State, use of Trainor, 33 Md., 554; N. C. R. R. vs. State, use of Geis, 31 Md., 357.
I discover no valid objection to the first, third, fourth and fifth prayers of the defendant.
The second prayer of the defendant is erroneous and might mislead the jury in failing to make the legal discrimination between any remote or immediate negligence . of the parties, resulting in the plaintiff’s injury.
Both parties may have been remotely negligent, and their joint negligence may have remotely concurred in the production of the injury; or the one may have been remotely negligent and the other more immediately ; and in this way their joint negligence may have co-operated to accomplish the injury ; and yet that might fail to show whose negligence was the proximate cause of the injury; and to whose negligence the injury is to be charged, according to the principles before stated in disposing of the plaintiff’s seventh prayer.
The defendant’s sixth, seventh and eighth prayers were erroneous in undertaking to withdraw from the jury *585the determination of the question of negligence by the decision of the Court, that the specific acts referred to in the prayers constituted negligence. The Court could only decide as to the standard of care, submitting the determination of the facts involved in that enquiry, to the jury.
The proposition in the last clause of the seventh prayer, was a sound one. Under the circumstances in proof, there was no obligation on the part of the defendant to have used more than ordinary care and diligence, to have prevented the accident.
There was error according to my judgment, in the granting of the defendant’s second, sixth, seventh and eighth prayers.