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ligence is the want of such care as men of ordinary prudence would use under similar circumstances; and the question as to whether the act of the plaintiff amounted in law to negligence depended upon the danger which might reasonably be expected to result therefrom. If the danger was So great that no sensible man would have incurred it, the plaintiff was not entitled to recover, but this, of course, raised a question of fact, Which We think was properly Submitted to the jury.” [7] In the present case there is absolutely nothing to indicate a want of due care upon the part of the plaintiff. She had the right to assume that the sidewalk was safe for pedestrians, and we would not be justified in declaring her guilty of contributory negligence merely because she did not observe in the obscurity to which she testified the low dark object over which she stumbled. The only Maryland case cited by the defendants in this connection is Knight V. Baltimore City, 97 Md. 654, 55 Atl. 388. In that case the accident occurred in daylight, and contributory negligence was imputed to the plaintiff because by his own admission the hole into Which the Wheel Of his Wagon ran was visible at a distance of half a Square, and he did not see it because he was talking to a companion, and was not looking. It WaS stated in the opinion by Judge Pearce that “greater watchfulness is required of the driver of a team upon a city street than of a pedestrian upon the sidewalk, and what would be negligence in law in the former case might not be in the latter.” The cases from other jurisdictions to which our attention has been called upon the question of Contributory negligence involved causes of injury which the evidence conclusively showed might have been avoided by the exercise of due care. In the present case such a condition Of proof does not exist. By the fourth prayer offered on behalf of the contractors, the proposition was submitted, in Substance, that, if both the defendants and the plaintiff Were negligent and the negligence of each contributed to the accident, then the Verdict must be for the defendantS, even though the jury Should find the negligence of the defendants to have been greater than that of the plaintiff. It is not necessary to discuss this prayer further than to Say that we do not find its theory supported by any legally sufficient evidence of the plaintiff's negligence. There was evidence offered by the defendants as to the location of street lamps in the parkway of the avenue in which the accident occurred, and as to their being lighted at the time, but there Was nothing affirmative to show that there was sufficient light at the place at which the frame was located to reveal it to a person exercising Ordinary care. In order to grant this instruction, it would be necessary to hold that the jury might infer negligence On the part of the plaintiff from the mere fact that

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she failed while walking at night with a child in her arms to See a dark Obstruction nine inches high lying on the sidewalk at a place where its presence was not to be suspected. A finding of contributory negligence under such circumstances could only be the result of conjecture. The rejection of the prayer WaS proper. The city and the contractors offered prayers for the Withdrawal of the Case from the jury upon the theory that there was no legally sufficient evidence of negligence on the part of the respective defendants. These prayers were rejected by the court below. The testimony was in conflict as to whether there was a light on the obstruction at any time prior to the accident and also, as already stated, as to Whether the frame was negligently placed and kept on the sidewalk; and the refusal of the proposed instructions was clearly correct. There Were other prayers offered by the defendants which the court below declined to grant, but no reference Was made to them in the argument on behalf of the defendants, and We Will not discuss them separately, but will simply state that they were all at variance With the principles We have discussed and applied to the case, and that We find no error in their rejection. The two prayers submitted by the plaintiff correctly presented the issues of fact to the jury and defined the measure of damages, and the Special exception to them. On the ground that they were not supported by legally sufficient evidence of the delivery of the frame to the defendantS prior to the accident, or of the plaintiff's due care, or of the defendants’ negligence, was properly OVerruled. In the first bill of exceptions the defendants noted their objection to the admission in evidence of an Ordinance Of the City Of Baltimore applicable by its terms to municipal agents and employés as well as to all other persons, providing that building material left in any Of the StreetS, laneS, Or alleys of the city should during the night “be designated by displaying a lighted lamp Or lantern at Such part Of the Same as to be easily observed by persons passing along the Streets.” [8, 9] This evidence Was competent, not only as reflecting upon the duty of the defendants in the premises, but also as emphasizing the right of the plaintiff, with her presumptive knowledge of the Ordinance, to assume that, in the absence of Such a signal of danger, the street was safe for her passage. In the case of Flynn V. Canton Co., 40 Md. 312, 17 Am. Rep. 603, cited in support of this exception, there was no question as to the admissibility of evidence, and the point of the decision Was that the failure of an abutting owner to comply with an ordinance requiring under a prescribed penalty the removal of Snow from the Sidewalks in Baltimore city did not make him liable to a person injured by a fall occasioned by an accumulation of Snow and ice in front of the defendant's dwelling. The second, fifth, sixth, ninth, and tenth exceptions were not pressed. There is no reversible error in any of the rulings to which they relate. [10] In the third bill of exceptions the defendants complain of the admission of a statement by the plaintiff in describing her injuries, to the effect that her hearing was affected by the injury She had sustained to the right side of her head when she fell OVer the frame. This Was claimed to be Objectionable On the ground that the declaration did not mention loss of hearing as one of the consequences of the accident. It was urged that, where a plaintiff proposes to claim for injury to one of the special senses, the defendant should be given notice Of Such a claim in the declaration, as OtherWise he may be subjected to Surprise at the trial. In the present declaration it is averred that the plaintiff's right leg was severely and permanently injured, that her head was badly bruised and her system generally Shocked, and that she sustained other permanent injuries. The defendants Were thus apprised that the plaintiff's claim was intended to cover, not only the wounds specifically mentioned, but also other injurious effects of the fall, and in our opinion the impairment of her hearing as a consequence Of the injury to her head WaS COmpetent to be proved as an element of damage. [11] The fourth exception is unimportant. A question propounded to the plaintiff On cross-examination was ruled improper, apparently because it assumed conduct on her part to Which She had not testified; but it was at Once repeated in another form and answered without objection. [12] It appears from the seventh bill of exception that the court below refused to permit a witness to answer a question as to whether Broadway was a well-lighted block as compared with other parts of the city. There was no issue of negligence in relation to the ordinary lighting of the street, and there was full proof as to the location of the lamps in that vicinity, and the fact that they were lighted at the time of the accident. The inquiry as to Whether the block was well lighted as a matter of comparison was therefore irrelevant. The eighth exception presents the same question, and the evidence to which it refers was properly excluded. [13] The eleventh, twelfth, thirteenth, and fourteenth bills of exception refer to testimony admitted in rebuttal to the effect that on various nights between November 2d, the date of the accident, and the latter part of the same month, there was no light on the frame. This was in contradiction of the tes

timony given by the contractors' materialman, previously noted, that beginning with October 24th he had himself placed a lighted lamp on the obstruction every night, and had taken it away every morning, until the removal Of the frame about the last Week in November. It is objected that this evidence on both sides was irrelevant, except in SO far as it related to the presence Or absence of the light on the night of the accident, but that the testimony of the defendants' Witness on the subject, having been admitted without objection, could not be made the Occasion for the introduction of immaterial evidence in rebuttal by Way of contradiction. This objection incorrectly assumes the irrelevancy of the evidence sought to be rebutted. AS indicating care and diligence in the maintenance of the light, it was competent for the defendants to prove by the employé to whom they had committed the duty that he had given the matter his personal attention every night without intermission until the Obstruction Was removed. [14] This testimony was pertinent to the issue of negligence, and the contradictory evidence offered in rebuttal was equally Competent. We find no reversible error in any of the rulings presented for review, and the judgment Will be affirmed. Judgment affirmed, with costs.

(115 Md. 552) HEND RICE v. STATE).

(Court of Appeals of Maryland. April 5, 1911.)

1. CRIMINAL LAw ($ 1011*) — ExISTENCE or OTHER REMEDY. Laws 1910, c. 207, regulating motor vehicles, provides, in section 140p, that magistrates shall have jurisdiction of offenses thereunder, and gives an appeal only to the circuit court. Held, that a writ of certiorari should not be issued to test the jurisdiction of the circuit or justice court, for the Court of Appeals will, in suits such as this, entertain an appeal or writ of error, though not provided for, to test the jurisdiction of the inferior tribunals. [Ed. Note.—For other cases, see Criminal Law, Dec. Dig. $ 1011.*]

2. Courts (§ 207*)—CouBT OF APPEALs—CERTIORARI. The Court of Appeals has appellate jurisdiction only, and may not issue writs of certiorari in original proceedings. [Ed. Note.—For other cases, see Courts, Dec. Dig. § 207.*]


Laws 1910, c. 207, § 140p, which is part of the law regulating motor vehicles, provides that any person accused of an infraction may be tried by the nearest justice of the peace, and, if convicted, may have an appeal to the circuit court. One accused of a violation was conVicted in the justice court, and appealed to the circuit court. Held, that the circuit court had jurisdiction to determine the constitutionality of the law, and certiorari should not issue on the ground that the circuit court was without

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jurisdiction, though its determination was errOneous. [Ed. Note.—For other cases, Law, Dec. Dig. $ 1011.*] 4. CRIMINAL LAW ($ 1011*)—REVIEW. Under Laws 1910, c. 207, regulating motor vehicles, and providing in section 140p that the nearest justice shall have authority to try offenders who may appeal to the circuit court, one wishing to attack the constitutionality of the law and obtain review of the decision of the circuit court by the Court of Appeals should sue out of the circuit court a writ of certiorari directed to the justice, and take an appeal from the determination of the writ, for that determination is an exercise of the circuit court's common-law functions from which appeal will lie. [Ed. Note.—For other cases, see Criminal Law, Dec. Dig. $ 1011.*]

see Criminal

John T. Hendrick was convicted in a justice court of operating his automobile without having paid the registration fee, and he appealed to the circuit court, where the judgment was affirmed. On application for certiorari to the circuit court. Application denied.

Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, PATTISON, and URNER, J.J.

Ralston, Siddons & Richardson, for appellant. Isaac Lobe Straus, Atty. Gen., for the State.

BOYD, C. J. John T. Hendrick filed a petition in this court for a Writ of certiorari directed to the circuit court for Prince George's county, to the end that the case against him referred to in the petition may be reviewed, and that the judgment of the circuit court may be quashed. The petitioner Was arrested for operating his automobile Without having paid the registration fee required by section 133 of the motor vehicle law of Maryland passed in 1910 (chapter 207), and Was taken before a justice of the peace for Prince George's county. He filed a motion to quash the warrant on the ground that the act was unconstitutional, which was overruled by the justice, and he was then tried, found guilty, and fined the sum of $15. He then entered an appeal to the circuit Court for that county, and, the record of the proceedings before the justice having been transmitted to that court, the petitioner was there tried, and the judgment of the justice Was affirmed. Section 140p of the act of 1910 gives any person convicted by a justice of any offense under the subtitle of the act the right to appeal to the court of criminal jurisdiction of the county in which he may be convicted, which is the circuit court. The petitioner availed himself of that right, but contends that he is entitled to the writ of certiorari on the ground that the act is unconstitutional, and that for that reason the court was acting outside of the jurisdiction

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conferred upon it by law, the contention of the petitioner being that the circuit Court was in error in assuming jurisdiction of the case when it had before it an agreed Statement of facts showing that he was a citizen of the United States, a resident Of the city of Washington, in the District of Columbia, and conducted and Operated his automobile from the city of Washington into Prince George's county, and while temporarily operating the same as aforesaid was arrested in Hyattsville, in Said county, on the charge of operating his said automobile on the highways in the state of Maryland withOut having procured the certificate of registration required by section 133 of the motor Vehicle law of said state. So far as We are aware, this is the first time an application has been made to this court to grant the Writ of certiorari to the circuit court (or any court having like jurisdiction) on the ground that the latter, when sitting in its appellate capacity, hearing an appeal from a justice of the peace or Other tribunal which was authorized by law to be taken to it, had exceeded its jurisdiction. That fact alone Should cause us to be extremely cautious in entertaining such an application, for our reports contain many decisions in Which the jurisdiction of the Circuit Court (We need not mention. Other courts exercising like jurisdiction) has been attacked on the ground that the justice of the peace or other tribunal appealed from did not have jurisdiction, and hence the lower court did not have it. If it had been Supposed by the profession that there was a remedy by the writ of certiorari, it would surely have heretofore been resorted to by Some of the attorneys engaged in such cases. [1] We have frequently decided that, although when a statute gives the right of appeal to the lower court and no appeal is expressly given to this court, ordinarily we have no jurisdiction to entertain an appeal from the judgment of the lower court. If the lower court and the justice or other tribunal appealed from did not have jurisdiction, we would entertain an appeal or Writ Of error On that ground. As that is thoroughly established in this state, it would of itself be sufficient reason for refusing to grant a Writ of Certiorari to test the question Of juriSdiction, aS appeals Or Writs of error are the usual methods of bringing cases before this court for review, and nothing could be accomplished in such cases by writs of certiorari, which could not be by one of those methods. It is true it WaS Said in Gaither v. Watkins, 66 Md. 576, 8 Atl. 464, that we were not prepared to go to the extent of Saying that “a Writ of certiorari Ought not to issue in any Case where a party has a remedy by appeal or by writ of error,” but it was also there said that “the writ ought not to be granted in any case Where the party has a right of appeal, except for the purpose of testing the jurisdiction of the tribunal below.” That had reference to an application to Such a COurt aS the circuit court for the Writ of certiorari, to be issued to an inferior tribunal, and the reason why that court should allow the writ to test the jurisdiction is given in that Opinion, and is not in any way applicable to this Court. The reaSOn there aSSigned WaS that an appeal to the circuit court from an inferior tribunal “brings up the case generally on its merits, and this would in a case like the One before us, involving the question whether the public convenience required the road to be open, Subject the parties to an expensive and protracted litigation; Whereas, by certiorari, to test merely the jurisdiction of the commissioners, the question is One to be decided on the face of the proceedings themselves. In such cases it is a more efficient remedy than by appeal.” In this Court We COuld not COnSider the meritS Of the case, but could only entertain the question of jurisdiction, which could be done as fully and as thoroughly by appeal or writ Of error as by certiorari. There is therefore no valid reason for granting the latter. [2] It would certainly be contrary to all precedents, and not in accordance with the purposes for which this court was constituted, to issue the Writ of certiorari in Such a Case as this. In many of the states there are constitutional or statutory provisions authorizing their highest appellate courts to issue this writ, as will be seen by a reference to 4 Ency. of Pl. & Pr. 15, et seq. But this Court is one of appellate jurisdiction only. In Sevinskey v. Wagus, 76 Md. 335, 25 Atl. 468, we held that a statute which provided that “the Court of Appeals, and the chief judge thereof, Shall have the power to grant the writ of habeas corpus, and to exercise jurisdiction in all matters relating thereto throughout the State,” Was unconstitutional and void, as the Legislature had no power to confer upon the appellate court such original jurisdiction. In passing on the question Chief Judge Alvey said: “The Constitution (article 4, § 14), in defining the jurisdiction of this court, declares that ‘the jurisdiction of Said Court of Appeals shall be coextensive with the limits of the state, and such as now is or may hereafter be prescribed by law"; that is to say, such appellate jurisdiction as the court then had or might thereafter have conferred upon it. The court at the time of the adoption of the present Constitution had, under former Constitutions, appellate jurisdiction only; and the terms by which the jurisdiction is defined in the present Constitution are substantially the same in meaning as th0Se employed in the COWStitutions Of 1851 and 1864. It Would therefore seem to

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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by the Legislature to confer such jurisdiction is simply nugatory and void. Ex parte O'Neill, 8 Md. 227; State v. Shields, 49 Md. 301; State v. Glenn, 54 Md. 594.” It will be Observed that the Legislature had attempted to confer the power sought to be enforced in that case. [3, 4] Of course, it was not intended by that decision to say that this court could not grant a mandamus, certiorari, or other appropriate Writ in aid of its appellate jurisdiction, but there is no power granted to it by the Constitution to issue writs of mandamus, certiorari, or writs in cases of any other subject-matter of original jurisdiction, and the Legislature has not attempted to do So, if it be supposed that it could constitutionally confer Such power, notwithstanding What has already been said on that subject in the former decisions of this court. Under our system it would be of little, if any, use, if it had the power, for, as we have already Said, the question of jurisdiction of the circuit court and of the justices of the peace or other inferior tribunal can be tested by appeal from or writ of error to the circuit court, and, in addition to that, where the Writ of certiorari is Sued out of the circuit Court to test the power and jurisdiction of the inferior tribunal to act at all in the matter, the circuit court acts in its ordinary Common-law capacity, and an appeal will lie to this court from its judgment (B. & H. Turnpike Co. v. N. C. R. R. Co., 15 Md. 193); and that, too, notwithstanding an appeal is given by the statute from the justice of the peace or other inferior tribunal to the circuit court (Rayner V. State, 52 Md. 368; 2 Poe on Pl. & Pr. § 723A). But even if we had original jurisdiction, and were called upon to issue a Writ of certiorari in such case as this, there Would Still be conclusive reasons why we should not do so. As under our decisions it is settled beyond all question that, When there is an appeal, the Writ can only properly issue to inquire into the jurisdiction of the lower court, and prevent it from transcending the powers validly conferred upon it, we would be met at the very threshold of this case by the fact that there is nothing to show that the lower court did exceed its jurisdiction. The learned counsel for the petitioner overlook the distinction so often made by this court between cases in which there is the right to decide and those in which the question is simply whether they were rightly decided, or, as Chief Judge McSherry, in his Concise and forcible way 0f stating propositions, said in N. Y. Mining Co.

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inquiry here is, not Whether the trial court rightly decided, but whether it had the right to decide What it did decide.” If the lower Court had the right to decide What it did decide, then no question can be made in this court on the ground of want of jurisdiction, and Whether it rightly decided What it did decide can only be reviewed by this court When the right of review is given it. If that court had no right to decide the constitutionality of the statute, when raised on the appeal to it, what was to become of the case? No other tribunal was given authority to determine it. Surely it cannot be the law in this or any other state that, because the constitutionality of a Statute is attacked, the court must then and there stop all proceedings and further consideration of it, and require the case to remain undetermined. But that is precisely what the contention of the petitioner, if sustained, would lead to. If the court had no jurisdiction to decide that the law was constitutional, Where did it get the jurisdiction to do what the petitioner asked it to do—decide that it was not constitutional? When the petitioner took the appeal and the papers Were transmitted to it, it not only had the jurisdiction to decide the case, but it was its manifest duty to do so, unless the parties made Some other authorized disposition of it. The statute in terms says that “any person so convicted of any offense under this Subtitle Shall have the right of appeal from the judgment of such justice of the peace, * * * and such court on such appeal shall hear the case de novo.” No appeal to this Court is given, but, as we have seen, an appeal will lie to test the jurisdiction. The judgment of the court to which the appeal is taken under the statute is therefore as final and binding on the parties as a judgment of this court would be in any case in Which its judgment is final, provided the court had jurisdiction, and, if it did not have, ample remedy is afforded the accused by appeal or Writ of error. It is not unusual for State courts to have questions before them involving provisions Of the federal Constitution, and it cannot be Said that they have not the jurisdiction to determine such questions, unless there be Some case in which the federal courts have eXclusive jurisdiction. When the State court determines the question, it is final and binding on the parties, unless reviewed by the tribunal authorized to review it, and it cannot be said that such court had no jurisdiction over the case merely because a federal question was involved. In this court We frequently have such questions presented, but it has never been suggested that our deciSions Were not final and conclusive on the parties, if not taken to the Supreme Court of the United States. In Rayner v. State, 52 Md. 368, it was contended that the statute under which the traverser had been convicted before the justice of the peace, which conviction Was affirmed by the circuit court

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On appeal, Was unconstitutional. Judge Alvey, in speaking for the court, said: “But whatever may be thought of the particular provisions of the statute supposed to be obnoxious to Constitutional objections, and if the objections were conceded to be Well taken, it does not follow that the right of appeal Was not Well and Validly given, and that the circuit court would not have power and jurisdiction to hear and decide the case.” After Saying that it was true that the circuit court was not in the exercise Of its Ordinary common-law jurisdiction, but was acting as a court of special limited jurisdiction, he continued: “Its judgment, however, rendered within the limits of the Special jurisdiction conferred, is not only binding, but is final. This court has no power to review it, and consequently the assignment of errors must be dismissed.” The Court went on to say that: “If, instead of the appeal under the Statute, the party had applied for the writ of certiorari, upon the Specific ground of the unconstitutionality of the statute, and the consequent want of power and jurisdiction of the magistrate to proceed under it, the circuit court then would have been in the exercise, not of the special limited jurisdiction, but of its ordinary commonlaw jurisdiction; and from its judgment in the premises a writ of error or an appeal Could have been prosecuted to this court.” In the case of Judefind v. State, 78 Md. 510, 28 Atl. 405, 22 L. R. A. 721, the Sunday law WaS attacked On the grounds, amongst others, that it was contrary to the first paragraph of the fourteenth article of the ConStitution Of the United States and the Bill of Rights of Maryland. This court, after repeating what in substance had been said in Rayner V. State, in speaking of the circuit court, Said: “That court had the power and authority to entertain the appeal from the judgment of the justice on the question Of jurisdiction, as Well as on other grounds, and, the plaintiff in error having invoked and submitted himself to its jurisdiction, its judgment is final and conclusive.” See, also, Messick v. State, 82 Md. 583, 34 Atl. 537; Roth v. State, 89 Md. 524, 43 Atl. 769; Arnsberger v. Crawford, 101 Md. 247, 61 Atl. 413, 70 L. R. A. 497; Josselson V. Sonneborn, 110 Md. 546, 73 Atl. 650; Smith Premier Co. v. Westcott, 112 Md. 146, 75 Atl. 1052; 2 Poe on Pl. & Pr. § 723A. It Will be seen from the cases cited and Others which might be referred to that if it is desired to test in this court the constitutionality of a law, which it is alleged is unconstitutional and void, and hence that the justice cannot lawfully act under it, appliCation for a Writ of certiorari can be made to the circuit court, and from the judgment of that court an appeal can be taken to this Court, but if, instead of doing that, there is an appeal to the circuit court, under the authority of the statute giving such appeal, its judgment on the constitutionality of the

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