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Md.)

CATANZARO DI GIORGIO CO. v. F. W. STOCK & SONS

887

"16th, Ņovember, 1910.-Judgment on ver- defendant for the use of the plaintiff, would dict nisi.

be the amount of money received by the de17th, November, 1910.-Defendant's mo fendant for the use of the plaintiff, with tion for a new trial. Reasons filed. Service interest in discretion of the jury. In Ruhl admitted.

v. Corner, 63 Md. 179, it was held that a "3rd, December, 1910.-Petition of the similar prayer was correctly refused, for it plaintiffs, requiring the defendant to elect claims as the measure of damages that which between the exceptions and its motion for a belongs to the action of trover, and not to new trial, filed. Service admitted.

the form of action adopted by the plaintiffs. "17th, December, 1910.-Defendant's mo- In the action of assumpsit, the plaintiff can tion for a new trial "overruled.'

only recover for the money had and received "17th, December, 1910.-Judgment on ver- from the sale to the use of the plaintiff. dict absolute in favor of the plaintiffs for This prayer was therefore inconsistent with the sum of $1,070.50, with interest from date the form of action. Thomas v. Sternheimer, and costs.”

29 Md. 268; Heinekamp v. Beaty, 74 Md. We have thus transcribed and inserted 393, 21 Atl. 1098, 22 Atl. 67. the docket entries because it appears there [4] The prayer is also objectionable in are no bills of exceptions presenting the rul- other respects : First it segregates a por ings of the court below, except upon the tion of the evidence, and directs the jury evidence and prayers, and the rulings of to find in favor of the plaintiff upon this the court upon the motions are not set out evidence, and not upon the whole evidence; by the record in a way so as to enable us secondly, there was evidence tending to show, to review them in this court.

that the defendant was a bona fide purchas[1] It is clear upon all the authorities that er for value, which should have been em. no question shall be considered or passed braced in the prayer for the jury to pass upon by this court which does not appear upon; and, thirdly, the prayer as framed did by the record to have been raised or passed not present a sound legal proposition. Darupon by the court below. Long v. Hawken, rin v. Whittingham, 107 Md. 52, 68 Atl. 269; 114 Md. 240, 79 Atl. 190; Palmer v. Hughes, Poe's Pleading & Practice, vol. 2, § 301; 84 Md. 658, 36 Atl. 431; New & Son v. Tay- Mt. Vernon Co. v. Teschner, 108 Md. 173, 69 lor, 82 Md. 41, 33 Atl. 435; Wilkin Mfg. Co. Atl. 702, 16 L. R. A. (N. S.) 758; ChrisV. Young, 115 Md. - 81 Atl. 879; Warren topher v. Christopher, 64 Md. 585, 3 Atl. Bros. v. Kendrick & Roberts, 113 Md. 603, 77 296; Buchanan V. Savings Institution, 84 Atl. 847, 140 Am. St. Rep. 445.

Md. 436, 35 Atl. 1099. [2] In this case, the rules of court are not [5] The plaintiff's third, fourth, and ninth in the record, and we have nothing except prayers were also erroneous, and should the docket entries, and these do not show have been rejected. The third prayer was why the court permitted the plaintiff to defective because it excluded from the constrike out the replication to the fourth plea, sideration of the jury the evidence and deor why it struck out the fourth plea at all, fenses relied upon by the defendant to de and the presumption therefore is the court feat the action, and contained an erroneous ruled and decided correctly. Cushwa v. proposition on the facts of the case. The Cushwa, 9 Gill, 247; Newcomer v. Keedy, 9 fourth prayer is subject to the same objecGill, 263; Thorne v. Fox, 67 Md. 74, 8 Atl. tions as stated against the first prayer, upon 667; Stockett v. Sasscer, 8 Md, 375; Hutton the measure of damages, and practically emv. Marx, 69 Md. 255, 14 Atl. 684.

braced the first prayer. Ruhl V. Corner, Coming now to the rulings of the court 63 Md. 179. upon the prayers and the evidence, it ap [6] The plaintiff's ninth prayer was grantpears that at the trial the defendant re-ed in connection with plaintiff's first, third, served 40 exceptions, 39 to the rulings upon and fourth prayers. They are so absolutely the evidence, and the fortieth to the ruling inconsistent upon the measure of damages of the court in granting the plaintiff's first, that conformity with one necessarily im. third, fourth, and ninth prayers, and in replied a disregard of the one or the other. fusing the defendant's first, fourth, fifth, The theories of the prayers were conflicting sixth, seventh, ninth, fourteenth, fifteenth, and directly opposed, and were calculated sixteenth and seventeenth prayers, and in to mislead the jury, and should have been overruling the defendant's special exceptions rejected. Adams v. Capron, 21 Md. 186, 83 to the third and ninth prayers of the plain-Am. Dec. 566; Haney v. Marshall, 9 Md. 215; tiff. There were 27 prayers submitted in all.. B. & O. R. R. Co. v. Blocher, 27 Md. 277;

[3] The plaintiff's first prayer was clearly Farmers' Packing Co. v. Brown, 87 Md. 13, erroneous, and should have been rejected. 39 Atl. 625. It was error to have instructed the jury [7] This brings us to a consideration of that the verdict must be for the plaintiff the defendant's prayers, and, in the view for the value of the goods at the time of we take of this case, we think the defendtheir sale to the defendant. The proper ant's fourteenth, fifteenth, and sixteenth measure of damages, in an action of this prayers should have been granted, as the kind, for money had and received by the appellant was entitled to the benefit of the

statute of limitations under its third plea. under an amendment to the action in asWhile these prayers do not refer to the sumpsit to a quantum meruit, this court held pleadings, the defendant's first and second it was a new suit, and the statute of limprayers do refer to them, and this, we think, itations was a bar to the action. In Zier v. is sufficient to permit an examination of the Chesapeake Ry. Co., 99 Md. 41, 56 Atl. 385, pleadings on these prayers. The first pray- Chief Judge McSherry, said: “Thus, in IIamer asked the court to instruct the jury that ilton F. Thirston, supra, it was held that a "there was no evidence under any count in plea similar in effect to the one we are conthe declaration,” and the second prayer "re-sidering was proper because the amendment ferred to the material averments of the dec-of the declaration changed the form of aclaration." In Fletcher v. Dixon, 107 Ma. tion.” Mr. Poe, in his valuable work on 428, 68 Atl. 875, this court said: “It is true Practice (section 189), thus states the rule: that the prayer does not refer to the plead- "If the defendant omits to plead the statute ings, but defendant's D prayer did specifi- of limitations, and subsequently the declaracally refer to the third and fourth counts; tion is amended by the addition of other some prayers referred to the other counts; counts, the defendant is entitled to plead and defendant's H prayer referred to the limitations to such counts, and where the pleadings generally. The court's attention amendment materially changes the character to each and every count was therefore thus of the action the plea will be available.” drawn by the prayers of the defendant to In 25 Cyc. 1308, the rule is thus laid down, the pleadings.” Leopard v. Canal Co., 1 as supported by authority: “An amendment Gill, 222; Giles v. Fauntleroy, 13 Md. 136: which introduces a new or different cause Rowe v. B. & O. R. R. Co., 82 Md. 504, 33 of action and makes a new and different deAtl. 761; Baltimore Bldg. 'Ass'n v. Grant. mand does not relate back to the beginning 41 Md. 569; Baltimore Elevator Co. v. Neal. of the action, so as to stop the running of

the statute of limitations, but is the equiva65 Md. 438, 5 Atl. 338.

lent of a fresh suit upon a new cause of ac[8] The defendant's third plea set up the defense that the alleged cause of action did tion, and the statute continues to run until defense that the alleged cause of action did the amendment is filed; and this rule apnot accrue within three years before the suit, plies, although the two causes of action arise and this plea under the facts of the press out of the same transaction. And if the ent case was a bar to the action. The de plaintiff introduces a new claim and cause fendant's second amended declaration and of action by the amendment against which the cause of action, filed on the 4th day of the statute of limitations has run, that deApril, 1905, materially changed the character fense is available.” 25 Cyc. 1304 and 1309. of the action, and made an entirely new case. The filing of the second amended declaration The original suit had been instituted in as- and cause of action was equivalent to bringsumpsit on the 5th day of June, 1901, and ing a new suit as of the date of the amendwas changed on the 4th day of June, 1903, ment, and the defendant cannot be deprived to trover, and on the 4th of April, 1905, the of the opportunity of pleading the defense form of action was amended to assumpsit, of limitations. Johnson v. District, 1 Macand a new claim, demand, and cause of ac- key, D. C. 428. In the present case, the tion filed with the declaration. These ac- change of the form of action by the plaintions, one in tort and the other an action ex tiff's amendment introduced a new and difcontractu, do not admit of the same pleas. ferent claim, demand, and cause of action, The measure of damages in trover is the and this opened the case to the bar of the value of the goods at the time of the con- statute of limitations under the defendant's version, and in assumpsit the recovery is for third plea, and there was error in not grantthe money had and received for the use of ing the defendant's fifteenth, sixteenth, and the plaintiff. In Schulz v. Fox, 53 Md. 37, seventeenth prayers. As this conclusion disit was held upon the filing of the amended poses of the case, it will be unnecessary to declaration, under the circumstances of that consider the other rulings raised by the recase, the defendant had the right to inter- maining exceptions. pose the plea of limitations as a defense to For the errors indicated, the judgment apthe new case thus made against him. In pealed from must be reversed, and as the Hamilton v. Thirston, 94 Md. 256, 51 Atl. plaintiff's demand, set out in the second 42, where the original declaration was a suit amended declaration, is barred by limitaupon an alleged oral agreement, and there tions a new trial will not be awarded. was no count in the declaration on a quan Judgment reversed, and new trial refused, tupi meruit for the value of the services, with costs to the appellant.

Md.)

FIROR V. TAYLOR

389

(116 Md. 69)

ants of one of the defendants, as well as negliFIROR et al. V. TAYLOR.

gently driven by the servant of the other de

fendant, the court erred in charging that, if the (Court of Appeals of Maryland. June 22,

timbers had been negligently loaded, and the 1911.)

wagon was also negligently driven, plaintiff 1. APPEAL AND ERROR ($ 324*)-SEVERANCE. could recover against both defendants.

Where one of two or more parties against [Ed. Note. For other cases, see Trial, Cent. whom a judgment has been entered at law de- Dig. $$ 596-612; Dec. Dig. § 252.*] sires to appeal, he should apply to the Court 9. TRIAL ($ 139*)-REQUEST TO CHARGE-DIof Appeals for a writ of summons and sever

RECTION OF VERDICT-QUESTION FOR JURY. ance.

Where there was evidence sufficient to jus[Ed. Note. For other cases, see Appeal and tify submission of the case to the jury as against Error, Cent. Dig. $$ 1806–1809; Dec. Dig. & one of the defendants, the court properly re324.*)

jected prayers offered by him, instructing a ver2. DISMISSAL AND NONSUIT ($ 26*) - JOINT dict in his favor. TORT-FEASORS-NONSUIT.

[Ed. Note.-For other cases, see Trial, Cent. In a suit against joint tort-feasors, plain- Dig. $$ 338-341; Dec. Dig. § 139.*] tiff may submit to a nonsuit before the close of his case, as well as when it is concluded, as to 10. TRIAL ($_251*)-INSTRUCTIONS

APPLICAsuch of the defendants as the evidence does not

BILITY TO PLEADING. sufficiently connect with the tort.

A requested charge, which did not correctly [Ed. Note. For other cases, see Dismissal state the facts relied on as alleged in plaintiff's and Nonsuit, Cent. Dig. 88 46, 48-59; Dec. Dig. amended declaration, was properly refused. § 26.*]

[Ed. Note.-For other cases, see Trial, Cent.

Dig. SS 587-595; Dec. Dig. § 251.*] 3. PLEADING (§ 237*) — AMENDMENT – CONFORMITY TO PROOF.

11. MUNICIPAL CORPORATIONS (8 706*) It was not error for the court, at the close

STREETS-INJURIES TO PEDESTRIANS NEGof plaintiff's case, to permit plaintiff to amend LIGENT DRIVING CONTRIBUTORY NEGLIhis declaration to conform to the proof by lim

GENCE. iting the allegation of negligence to two par

Where plaintiff, while standing on the curb, ticular defendants.

was injured by the overhang of timbers alleged [Ed. Note.-For other cases, see. Pleading, intersection, an instruction that, if plaintiff was Cent. Dig. $$ 603-619; Dec. Dig. § 237.*]

standing so near to the curb as to render such 4. NEGLIGENCE ($ 119*)—ISSUES, PROOF, AND an accident probable, and plaintiff in taking VARIANCE-DATE.

such position was not exercising ordinary care, That an accident occurred on a different he could not recover submitted the question of date from that named in the declaration is in- contributory negligence in as favorable a mansufficient to prevent a recovery.

ner as defendants were entitled to. [Ed. Note.-For other cases, see Negligence, [Ed. Note.-For other cases, see Municipal Cent. Dig. $ 212; Dec. Dig. $ 119.*]

Corporations, Dec. Dig. § 706.*] 5. MUNICIPAL CORPORATIONS (8 706*)—STREETS 12. TRIAL ($ 252*)-REQUEST TO CHARGE-AP-WAGONS–NEGLIGENT LOADING.

PLICABILITY TO EVIDENCE. That beams being hauled over a city street Where, in an action by a pedestrian for projected over and beyond the edge of the wag- injuries caused by his being struck by the overon and came in contact with plaintiff as the hang of timbers hauled along a city street, there wagon was being driven along the street did was some evidence that one of the men on the not of itself show that the wagon was negli- wagon gave an alarm, but there was no evi. gently loaded.

dence that plaintiff heard the warning, or knew [Ed. Note.-For other cases, see Municipal that it was intended to warn him of danger Corporations, Dec. Dig. $ 706.*]

from the contents of the wagon, a request to 6. NEGLIGENCE ($ 139*)-INSTRUCTIONS.

charge that, if plaintiff was warned, but was Where, in an action against defendants heedless of the warning, and maintained his F. and S. for injuries to plaintiff, there was evi-position when an ordinarily prudent man would dence sufficient to entitle plaintiff to recover have moved, he could not recover was properly

refused. against F., a request by S. to charge that there was no evidence legally sufficient to entitle [Ed. Note.-For other cases, see Trial, Cent. plaintiff to recover, and that the jury's verdict Dig. $$ 596-612; Dec. Dig. § 252.*] should be for defendant S., was properly re- 13. DAMAGES ($ 172*)-PERSONAL INJURIESfused, as calculated to mislead the jury to be PROFITS. lieve that there was no evidence sufficient to

Where, in an action for injuries, plaintiff sustain a verdict against F.

testified that when injured he was operating a [Ed. Note.- For other cases, see Negligence, pool room, and that by reason of the injury he Dec. Dig. $ 139.*]

was unable to longer operate it, and ultimately 7. TRIAL (S 191*)-INSTRUCTIONS.

closed it, he was properly permitted to state Where, in an action for injuries, the ques- the amount of profits he made from the pool tion whether it was due to the egligent driving

room while he was operating it. of the wagon by the agents of defendant F. was [Ed._Note. For other cases, see Damages, for the jury, à recriest by another defendant Cent. Dig. $$ 490-192; Dec. Dig. S 172.*] to charge that the immediate cause of the in- 14. MASTER AND SERVANT (8 330*)--INJURIES jury was due to the negligent driving of the

TO THIRD PERSONS–EVIDENCE, wagon by Fi's servants was properly refused.

Where plaintiff, a pedestrian, was injured [Ed. Note. For other cases, see Trial, Cent. by the overhang of timbers claimed to have been Dig. $$ 439-466; Dec. Dig. $ 194.*]

negligently loaded by the servants of defendant 8. TRIAL ($ 252*)-REQUEST TO CHARGE-AP- S. on a wagon alleged to have been negligently PLICABILITY TO EVIDENCE,

driven, evidence that defendant F. was the Where, in an action for injuries to plain- master of the driver, and that the accident was tiff by his being struck by timbers so driven due solely to the driver's negligence, was admisalong a city street as to overlap the curb, there

sible. was no evidence legally sufficient to show that [Ed. Note. For other cases, see Master and the wagon was negligently loaded by the serv- Servant, Dec. Dig. $ 330.*]

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

15. JUDGMENT ($ 250*)—DECLARATION.

large sums of money for medical attendance, Plaintiff sued four defendants for injuries and was compelled to abandon the lucrative sustained by being struck by certain timbers negligently permitted to project over a sidewalk business in which he was engaged, and other as they were being hauled along a city street, wrongs then and there suffered and sustaincharging that the timbers were negligently loaded, for which he demanded $10,000. ed by the servants of defendant s., and that the wagon was negligently driven by the sery

During the trial, plaintiff took a nonsuit ant of defendant F.; that by reason of the neg- as to the defendants Pittsburg Valve Founligent acts of the “defendants” plaintiff was dry Construction Company and the city, and compelled to spend a large sum of money for proceeded to judgment against defendants medical attendance, etc. Plaintiff took a nonsuit against two of the defendants, and pro

Firor and Saxton alone. ceeded to judgment against the others. Held, At the close of plaintiff's case, defendants that the declaration was fatally defective and Firor and Saxton having moved for a verdict insufficient to sustain a judgment against the on the theory that the complaint charged two remaining defendants.

[Ed. Note.-For other cases, see Judgment, negligence against all the defendants, and Cent. Dig. § 436; Dec. Dig. § 250.*]

that such allegation was not sustained by 16. PLEADING ($ 240*)-AMENDMENT-MODE.

the proof, plaintiff asked leave in open court Where an action was originally brought to amend the declaration, so as to charge against four defendants, and at the trial two that the wagon by which plaintiff was injurof them were dismissed and the declaration amended, the proper practice was to leave the ed belonged to the defendant Howard O. Fioriginal 'declaration in the case and file a new ror, and was negligently and carelessly loadone against the remaining defendants, if it was ed by the agents and servants of the defenddesired to limit the allegations of negligence to ant Saxton. Leave to make this amendment them.

[Ed. Note.-For other cases, see Pleading, having been granted, the motion to dismiss Cent. Dig. $8 636-641; Dec. Dig. § 240.*] made by defendants Firor and Saxton was 17. MASTER AND SERVANT (8 304*)-INJURIES denied.

TO THIRD PERSONS — CONCURRENT NEGLI Defendant Saxton's third prayer prayed GENCE.

the court to instruct the jury that there was Where a third person is injured by the concurrent negligence of the servants of different no evidence legally sufficient to prove that masters, the law does not draw fine distinctions the loading of the wagon on the day alleged in determining which negligence was the proxi- in the declaration was done in a negligent mate cause of the injury. [Ed. Note. For other cases, see Master and manner, and that their verdict must be for

him. Servant, Dec. Dig. § 304.*]

Defendant Saxton's first prayer requested Appeals from Baltimore City Court; Thos. that the court instruct the jury that there Ireland Elliott, Judge.

was no evidence in the case legally sufficient Action by Charles J. M. Taylor against to entitle plaintiff to recover, and that their Howard O. Firor and others. Judgment for

verdict must be for the defendant Saxton. plaintiff against defendants Firor and Sax

Defendant Saxton's fifth prayer requested ton, and they appeal separately. Reversed, the court to charge that the immediate cause and new trial ordered.

of plaintiff's injury was due to the negliPlaintiff's amended declaration purported gent driving of the wagon in question by the to charge Howard O. Firor, E. Saxton, the agents of defendant Firor, and that their Pittsburg Valve Foundry Construction Com- verdict must therefore be in favor of depany, and the mayor and city council of Bal- fendant Saxton. timore with a cause of action for injuries, Plaintiff's first prayer, which the court and alleged that on March 21, 1910, plaintiff gave, requested the court to charge that, if was rightfully on the pavement or sidewalk the jury should find from the evidence that on the corner of Fayette and St. Paul streets, plaintiff was standing on the sidewalk at in Baltimore city, and was exercising due or near the corner of Fayette and St. Paul and proper care, and while so rightfully on streets, in Baltimore city, and that he was the pavement or sidewalk a wagon belonging exercising ordinary care, and should further to the defendant Howard 0. Firor, and in find that a wagon belonging to and in charge charge and control of the agents and serv- of an agent or servant of defendant Howard ants of the defendant Howard O. Firor, was 0. Firor was driven along the street, near driven along the public highway, near to the the said corner, and such wagon was loaded pavement or sidewalk, in a negligent and care- with boards or timbers, nailed together, that less manner, which wagon was negligently and extended or projected beyond the sides of the carelessly loaded by the agents and servants wagon, and shall further find the boards or of the defendant E. Saxton with beams or timbers had been so placed or loaded by the timbers which protruded over such pavement agents or servants of defendant Saxton for or sidewalk, and the plaintiff was struck by the purpose of having been hauled or carried the said timbers and his arm and shoulder for Saxton through the streets of Baltimore, bones were broken, and he was seriously and and shall find that in so loading the wagon permanently injured; and by reason of the Saxton's agents and servants did not exercise said negligent and careless acts of the "de- such care or caution as a reasonably prufendants” plaintiff was compelled to expend dent man would ordinarily exercise under

Md.)

FIROR v. TAYLOR

391

like circumstances, and that the agent or Argued before BOYD, C. J., and BRISCOE, servant of defendant Firor in a negligent and PEARCE, BURKE, PATTISON, URNER, careless manner drove the wagon along the and STOCKBRIDGE, JJ. street, at or near the corner of Fayette and

Joseph N. Ulman, Frederick T. Dorton, St. Paul streets, and that plaintiff was struck and Wm. C. Smith, for appellants. Edwin by the boards or timbers with which the Burgess and D. Eldridge Monroe, for appelwagon was loaded and was injured, then the

lee. verdict must be for plaintiff against both defendants Firor and Saxton. Defendant Sax BOYD, C. J. The appellee sued the Pittston excepted to this instruction, first, because burg Valve Foundry Construction Company there was no evidence legally sufficient to and the mayor and city council of Baltishow that the wagon was negligently loaded; more, together with the two appellants (Firand, second, because even if there was evi- or and Saxton) now before us, for injuries dence legally sufficient to show such fact, the alleged to have been sustained by him by loading was the remote, and not the proxi- being struck by beams or timbers which promate, cause of the injuries.

truded over a sidewalk in Baltimore, while Defendant Firor's first, third, and fourth being carried in a wagon through one of its prayers were as follows: "First. The court streets. During the course of the trial, verinstructs the jury that plaintiff has produced dicts were rendered in favor of the two corno legally sufficient evidence under the plead- porations, but a verdict was also rendered ings to entitle him to recover as against de- against the two individual defendants, upon fendant Firor." “Third. The court instructs which a judgment was entered. They took that under the whole evidence there has been separate appeals, which upon motion in this produced no evidence legally sufficient under court were consolidated. the pleadings to entitle plaintiff to recover [1] The case is a peculiar one, as each against the defendant Firor. Fourth. The of the two appellants seeks to put the recourt instructs that there is no evidence le-sponsibility upon the other. As it had been gally sufficient to show that the driver of the recently repeated by us that, when one of wagon was at the time plaintiff was injured two or more parties against whom a judgthe servant of the defendant Firor, and hence ment has been entered at law desires to apthe verdict must be in his favor." All of peal, he should apply to this court for a which were refused.

writ of summons and severance (Oldenburg Defendant Firor's sixth prayer, which was v. Dorsey, 102 Md. 172, 62 Atl. 576; P. B. & granted, was as follows: “The court in-W. R. Co. v. Stumpo, 112 Md. 571, 77 Atl. structs that if the jury find that the position 266), it would perhaps have been better to in which plaintiff was standing was so near have pursued that course, but, as the apto the curb of the street, and so near to the peals were with our leave consolidated, we southwest intersection of Fayette and St. will treat them as a joint appeal, although Paul streets, as to render an accident proba- the fact that some of the exceptions were ble with beams passing along Fayette street taken by the one or the other of them makes and turning down St. Paul street, and that the record somewhat confusing. if they shall further find that plaintiff stood [2] The first exception of defendant Firor in that position with his back toward the will first be briefly referred to. When the curb, and shall further find that the plaintiff first witness mentioned in the exception was in thus taking that position was not exercis-on the stand, the plaintiff called for the coning the care that an ordinarily prudent per tract between the mayor and city council of son would exercise under like circumstances, Baltimore and the Pittsburg Company, and then plaintiff is not entitled to recover, and after examination of it one of the counsel their verdict should be for defendants." for the plaintiff stated that they were satis

Defendant Eiror's seventh prayer was as fied that the city of Baltimore was not liafollows: "The court instructs that if the ble, and they consented to a verdict in its jury find that plaintiff was standing in the favor. Accordingly a verdict was rendered position on the sidewalk at the corner of St. at once in favor of the mayor and city counPaul and Fayette streets, in Baltimore city, cil of Baltimore, and judgment was entered and in close proximity to the fire alarm box thereon. The defendant Firor then moved as testified by him, and further find that as to stay further proceedings, upon the ground the wagon mentioned in the evidence ap- that judgment had been entered in favor of proached the corner plaintiff was warned the said defendant, but the motion was overof the danger of his position in respect to ruled. There was no error in that ruling. the contents of the wagon alleged to pro- It is well settled that in a suit against joint trude over the pavement or sidewalk, and tort-feasors the plaintiff may submit to a plaintiff was heedless of the warning and re- nonsuit as to such of the defendants as the mained in such position, and the jury be- evidence does not sufficiently connect with lieved that an ordinarily prudent man un- the tort in question; but, as was said in 1 der like circumstances, in the exercise of or- Poe on Pl. & Pr. § 527, "in actions of tort dinary care, would have moved from such against several defendants, if, at the end of position, and if plaintiff had moved he would the plaintiff's case, there is no evidence not have been injured, he could not recover." against one or more of the defendants, the

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