
    FRANCIS A. TOLSON vs. INLAND & SEABOARD COASTING CO.
    1. On an exception to the refusal of the Oourt to permit a witness to answer a question, the exception must show whether the answer would have been favorable or not, otherwise the Oourt cannot tell whether the exceptant was harmed.
    2. In an action to recover damages on the ground of defendant’s negligence, after plaintiff has proved such negligence, he is entitled to rest; and the burden then falls on the defendant to prove want of ordinary care and prudence on the part of the plaintiff, if that is relied on as a defense.
    At Law.
    No. 25,170.
    Decided July 11, 1887.
    The Chief Justice and Justices James and Merrick; sitting.
    Action for damages for a personal injury alleged to have been caused by defendant’s negligence. The trial resulted in a verdict and judgment for plaintiff.
    Motion by defendant for a new trial on bills of exception.
    The Facts appear from the opinion.
    Mr. Nathaniel Wilson, for defendant:
    The trial justice erred in granting the plaintiff’s third and fourth prayers, by which the jury was instructed that certain enumerated facts, if proved, would be prima facie evidence of negligence.
    The general rule that a party charging negligence as a ground of action must show that the defendant, by his act or by his omission, violated some duty incumbent on him which caused the injury complained of (The Nitro-Glycerine Case, 15 Wall., 524) is modified in certain cases where the proximate cause of the action is certain, and the nature of the accident supplies the requisite proof of negligence.
    In such cases the term “prima facie evidence of negligence” has come to have a definite meaning.
    “ It is used to designate that collocation of facts which, if believed by the jury, will entitled them to find that the defendant has been guilty of negligence resulting in damage to the plaintiff.”
    The facts which are allowed to supply the proof of negligence must show: 1, a duty on the part of the defendant towards the plaintiff; 2, a failure to perform that duty; 3, damages resulting from such failure and a proximate connection between the failure to perform the duty and the damages sustained by the plaintiff. 2 Thom. Neg., p. 1231.
    The plaintiff not only prevented the servants of the defendant from landing and taking on freight, but he volunteered his services in putting the freight on in a highly dangerous manner, and thereby exposed himself to injury. He at that time and in that situation had no other or greater rights than if he had been an employee, a mate, or a deck hand. Everhart vs. Terre Haute S. R. R. Co., 78 Ind., 292.
    The Court assumed the existence of facts which there was no evidence tending to prove. This is error. Thomp. Charging Juries.
    Washington Mut. Fire Ins. Co. vs. St. Mary’s Seminary, 52 Mo., 480; Andreas vs. Ketcham, 77 Ill., 377.
    The Court erred in that part of its charge which related to the supposed duty of the defendant to exercise reasonable care to avoid the danger created by the negligence of the plaintiff.
    The instruction was not justified by, and had no relation to, the facts in the case, and is of precisely the same character as that pronounced erroneous in the case of Spencer vs. Balt. & O. R. R. Co., 4 Mackey, 145.
    It has been held as erroneous to charge that evidence of the admissions of a party is to be regarded as dangerous and liable to abuse.
    In the case of Castleman vs. Sherry, 42 Texas, 62, the Court said: “Such expressions (of the judge) are to be regarded as matters of argument, rather than rules of evidence having the force of law. The jury should be left free to make up their verdict, judging for themselves of the credibility of the witnesses and the weight to be given to the evidence.” See also Well's Law & Fact, sec. 412.
    The Court erred in excluding evidence offered on the part of the defendant, tending to prove that the position of the plaintiff on the pier, as defined by the plaintiff himself, was a dangerous one.
    The reason specified for excluding the testimony was that the witness was not a wharfinger.
    It has been frequently held that á witness to be entitled to be examined as an expert need not be engaged in the same occupation as that concerning which inquiry is made. Lawson, Expert Testimony, 101.
    Messrs. Birney & Birney and C. C. Cole, for plaintiff;
    The first exception was to the refusal of the Court to allow defendant's attorney to inquire of plaintiff if his suit was brought for speculative purposes. The question was clearly irrelevant, as not in any way touching the issues. Goodhand vs. Benton, 6 Gill & J., 484.
    The second, third and fourth exceptions were to the inquiries permitted of the expert witnesses. The only ground of objection stated is that the question “does not locate the position of the vessel with reference to the wharf, either out in the stream or up the stream.”
    The defendant is limited to the objections stated in his exception. Woodbury vs. D. C., 3 Cent. Rep., 788; 5 Mackey, 128.
    The question to the witness Bonneville was properly excluded. It was not a matter for expert testimony, and the jury were as competent as the witness to answer the question. Davis vs. State, 38 Md., 38.
    Under the circumstances, a violent collision of the steamboat with the wharf would be prima facie evidence of negligence. Stokes vs. Saltonstall, 13 Pet., 181; McDade vs, Washington etc. R. R. Co., 3 Cent. Rep., 794.
    
      If is was dangerous to attempt a rear landing, to do so would be evidence of negligence. McDade vs. Washington, etc. R. R. Co. 3 Cent. Rep., 794; 5 Mackey, 144.
    What acts constitute negligence in a plaintiff is a question for the jury under all the evidence and circumstances.
    Sioux City etc. R. R. Co. vs. Stout, 17 Wall., 657; Muller vs. D. C., 5 Cent. Rep., 428; 5 Mackey, 289.
    The burden of proof to establish contributory negligence in plaintiff is upon defendant. Gladmon vs. Washington etc. R. R. Co., 15 Wall., 401; Muller vs. D. C. supra.
    
    By contributory negligence is meant want of care, which in part caused the injury complained of. Bigelow, Torts, pp. 721-724.
    Defendant’s first prayer sought to take the case from the jury, on the pretense that there was no evidence to support it. It was, of course, promptly refused. Sioux City etc. R. R. Co. vs. Stout, 17 Wall., 661; McDade vs. Washington etc. R. R. Co., supra.
    
    The third put the burden of proof on plaintiff to establish affirmatively his case and prudence. This is not the law in this jurisdiction. Gladmon vs. Washington etc. R. R. Co., 15 Wall., 401; Indianapolis etc. R. R. Co. vs. Horst 93 U. S.; Muller vs. D. C. supra.
    
    The fifth prayer assumed that there was evidence that the employment or business of wharfinger was dangerous in a high degree. There was no evidence to that effect. After refusing this prayer for this reason, the Court properly instructed the jury as to the measure of care necessary.
    The substance of the prayer having thus been given, defendant has no ground of complaint. McDade vs. Washington etc. R. R. Co., 3 Cent. Rep., 794.
    The seventh and eighth prayers segregate certain supposed •facts from the testimony, all of which were disputed, and asked the Court to say that proof of these facts would constitute contributory negligence on plaintiff as a conclusion of law.
    
      These prayers were properly rejected for two reasons:
    1. They ignored many of the circumstances attending the injury which might have qualified the acts stated.
    2. The question whether the acts stated constituted contributory negligence was for the jury and not for the Court.
    In Sioux City etc. R. R. Co. vs. Stout, supra, is is said: “Although the facts are undisputed, it is for the jury, and not for the judge to determine whether proper care was given, or whether they establish negligence.” See also Detroit etc. R. R. Co. vs. Van Steinburg, 17 Mich., 99.
    What constitutes negligence by the party injured is a question of fact. Balt. & O. R. R. Co. vs. Fitzpatrick, 35 Md., 32; Muller vs. D. C., supra Wells’ Law & Fact, 215 et seq.; McDade vs. Washington etc. R. R. Co., 3 Cent. Rep., 794; 5 Mackey, 144,
    In view of plaintiff’s great sufferings, past and prospective, we can hardly suppose that defendant’s counsel will urge that the damages were excessive; but on this point this Court will not interfere. The recovery was not considered excessive by the Court below.
    In Woodbury vs. D. C., 3 Cent, Rep., 788; 5 Mackey, 144, this Court declares that it will not interfere with a verdict, unless the damages are so shockingly excessive as to indicate that the jury were led, through their sympathies, to award too large an amount, or acted under some misconception of their duty.
   Mr. Justice Merrick

delivered the opinion of the Court:

This suit was brought to recover damages for crushing the foot of the defendant, at a wharf on the Potomac River, in effecting a landing of the steamer John W. Thompson, in so negligent a maimer that a portion of the wharf was torn up and broken, and the foot of the plaintiff was caught and crushed among the broken timbers. The plaintiff was the owner of the wharf, and was in the habit of attending to the duties of a wharfinger.

Testimony was given of the situation and condition of the wharf, of the manner in which the boat landed, and ought to have landed, and of the position of the plaintiff on the wharf at the moment of the accident and prior thereto, and of all that was done and said on the occasion, and of the respective practice and duties of the steamboat officers and of the plaintiff, in effecting landings and in taking off and putting freight on the steamer. As in most such cases the testimony was ' contradictory as to the main facts, and as to whether the accident was occasioned by the negligence of the defendant’s agents, by the fault of the plaintiff, or by the concurrent negligence of both parties.

In the progress of the cause several nautical men were examined in respect to the situation of the wharf in question, and as to the manner in which the approach to a wharf ought to be made, and how the particular landing was made, and as to the duties of a wharfinger; and then one of these mariners was asked if, in his judgment, a position within two or three feet from the fender piles of a wharf constructed as was the Shamrock wharf was a reasonably safe place for a wharfinger to stand when a boat was approaching, in order to take off freight or to make a landing. Objection was made to the question, which was sustained by the Court because the mariner was not shown to be a wharfinger; and to the refusal to admit the opinion of the witness the defendant excepted. Whether the answer would have been favorable or not to the defendant is not averred, nor shown anywhere in the exception; and this Court is, therefore, not advised by the record whether the defendant sustained any damage by the refusal of the Court to allow the question. This defect in the statement would of itself be enough to justify the Court in declining to award a new trial upon the exception. A party must show that he has in fact been prejudiced by a ruling before he can make it a ground of complaint on appeal.

But independently of that consideration we are of opinion that, all the facts in the case being given, the jury were quite as capable as an expert of forming a correct opinion as to whether it was dangerous to stand upon a wharf when a boat was approaching to take off freight or to make a landing. It certainly is not matter of science or technical skill to determine whether it be an act of common prudence for a man to stand upon a wharf which is proved to be strong and fit, and built for the express purpose of steamers stopping at and taking freight from them; and it does not require an expert to aid a jury in deciding whether any man, wharfinger or not, ought to anticipate that in effecting a landing in ordinary weather a steamer will demolish the timbers of a wharf at which it stops daily, and will thereby imperil the lives or limbs of those who may happen to be within two or three feet of the fender piles.

After all the testimony had been given the Court granted the eight several instructions asked by the plaintiff and refused the first, third, seventh and eighth, of the defendant, and granted the rest, with a modification of the fifth; which modification was admitted to be correct at the argument in this Court.

The proper forms of instructing a jury upon the question of negligence have been so often under review in this Court, as well as in the Appellate Courts of different States and the Supreme Court, that we are spared the necessity of detailed criticism. In the instructions which went to the jury, we think that the defendant had the benefit of every ruling to which he was entitled, and that the whole subject was fairly and fully put to the jury in its proper application to the facts in evidence.

In rejecting the third prayer of the defendant the Court was clearly right. After the plaintiff. has proved negligence on the defendant’s part he is entitled to rest, and the burden then falls on the defendant to prove want of ordinary care and prudence in the plaintiff, if he relies upon that as his defense.

The Court was right in rejecting the defendant’s seventh prayer, because it asked the Court to instruct the jury that for the defendant to put his foot between the piles of the pier and the flooring of the pier, or- between one of the piles in front of the pier and the flooring, and to allow it to remain there while the boat wTas departing from the pier, was negligence in law, and that the plaintiff could not recover if such were his position. The question of negligence under such circumstances belonged exclusively to the jury.

The eighth prayer seems to have been framed with some view of presenting the proposition that if the plaintiff voluntarily assumed to perform some dangerous office, as the servant of the defendant, and while so acting sustained an injury, he was not entitled to recover; but he does not in his prayer suggest that the injury was a consequence of his so acting or that, by so acting, he placed himself in a position of danger to which he would' not otherwise have been exposed. The concurrence of two things is widely different from the relation of two things to each other as cause and effect. In another aspect of the prayer it may have been meant to convey the idea that if the plaintiff voluntarily and knowingly placed himself in a situation of danger, and by reason of so doing was injured, he cannot recover. But regarding the prayer in either way, it is so defective in structure, so obscure, and so calculated to mislead a jury, that the Court had no alternative but to reject it. Even were the prayer less objectionable in shape, there could hardly have been error in refusing it, as the Court, in the instructions which were granted, gave the jury all that was really necessary for them to judge properly of the testimony; and in cases of this class it is the better practice to abstain from attempts to multiply distinctions when there is no substantial variation of the principles involved.

We have carefully compared the general charge of the trial justice with the criticisms made upon it by counsel in argument; but we have been unable to find any just ground of exception, and no good purpose would be subserved by a detailed examination of the objections which were made.

We shall, then, for the reasons we have given, affirm the judgment.  