(113 A.) (137 Md. 503) Rys. Co., 100 Md. 281, 59 Atl. 667, and Consol. Ry. Co. v. Armstrong, 92 Md. 554, 48 Atl. CONSOLIDATED GAS, ELECTRIC LIGHT 1047. & POWER CO. v. GREEN. (No. 55.) (Court of Appeals of Maryland. Jan. 12, Trial 1921.) 253(4) - Prayer properly_refused as omitting requirement that plaintiff's want of due care should contribute to injury. such failure, directly contributed to his injury. 2. Trial 260(1)-Prayer covered by another properly refused. [3] One of the defendant's granted prayers stated that it was the duty of the plaintiff, before crossing the railway tracks, to look and listen for approaching cars, and author-1. ized a verdict for the defendant if the jury should find that the plaintiff failed to so look and listen and that the accident was due to In an action against a power company for such failure. This prayer is criticized be- injuries while attempting to signal one of its cause it charged the plaintiff with the duty elevators, a prayer of defendant company held of listening as well as looking for approach- properly refused as omitting to require the ing cars. But, if it be conceded that there jury to find that the failure of plaintiff to exmay be conditions under which the due careercise reasonable care, if the jury should find required of those about to cross the tracks of a street railway can be fully observed by the use only of the sense of sight, and that it was not necessary for the plaintiff in this case to prove that he both looked and listened for cars before he reached a position of danger, we nevertheless can see no injury to the plaintiff in the granting of the defendant's prayer in view of the evidence. If the jury believed that he slowed down his motorcycle and looked for approaching cars, as he testified, they could have no doubt that he also listened for them at the same time, as there was no suggestion that his sense of hearing was impaired. In no view of the case would it be reasonable to hold that this instruction involved a reversible error. It is not error to refuse a requested prayer which is covered by a prayer given. 3. Carriers 347(3)-Case held for jury on issue of contributory negligence of plaintiff struck by elevator. In an action against a power company for injuries to plaintiff when in attempting to signal an elevator he put his head into the shaft, case held for jury under the evidence on the issue of plaintiff's contributory negligence. Appeal from Court of Common Pleas of Baltimore City; Charles W. Heuisler, Judge. "To be officially reported." Action by Oscar G. Green against the Consolidated Gas, Electric Light & Power Company of Baltimore, a corporation. From judgment for plaintiff, defendant appeals. Affirmed. Plaintiff's second prayer follows: [4] The only question to be considered relates to the form of a granted prayer of the defendant which instructed the jury that the burden of proof was on the plaintiff to establish by a preponderance of evidence "the state of facts alleged in the declaration." In the case of United Rys. Co. v. Cloman, 107 The plaintiff prays the court to instruct the Md. 681, 69 Atl. 379, a prayer which would jury that if they find that the defendant rehave directed a verdict for the defendant ifquested the plaintiff to enter its building on the testimony left the minds of the jury in Lexington and Liberty streets, described in the a state of even balance as to the truth of evidence, and invited him to use the elevators "the allegation in the declaration" was held in operation therein which were in an unfinishto have been properly rejected, because it ed condition, then it became the duty of dewould have had a tendency to mislead in fendant, its agents and servants, to use ordinary care in operating said elevator to prevent view of the fact that the declaration contain- the plaintiff from suffering any injuries while ed a number of allegations as to the plain- he was using or attempting to use the elevator tiff's injuries which were not essential to on said premises, provided the plaintiff exerhis right of recovery. But in Pillard v. Ches- cised that degree of care which a reasonably apeake Steamship Co., 124 Md. 468, 92 Atl. prudent man would have exercised under the 1040, a granted prayer in that form was ap- circumstances while using or attempting to use proved. In the pending case the declaration the elevator so operated by defendant. alleged in detail the injuries sustained by the plaintiff, and his proof supporting the allegation on that subject was without contradiction. The sole contested issues in the case were those of primary and contributory negligence, and, as they were fairly submitted to the jury, we see no reason to reverse the judgment and remand the case for a new trial because of the suggested error in the instruction just mentioned, which was plainly unprejudicial. Judgment affirmed, with costs. Defendant offered the following prayers: The court instructs the jury that the undisputed evidence in this case shows that the accident complained of was caused by negligence on the part of the plaintiff, and the verdict of the jury shall, therefore, be for the defendant. Second Prayer. The court instructs the jury that the plaintiff has offered no evidence in this case legally sufficient to entitle him to recover against the defendant, and the verdict of the jury shall, therefore, be for the defendant. Fourth Prayer. The jury are instructed that their verdict should be for the defendant unless they find from the evidence that the injury complained of was occasioned by the negligence of the defendant, and that the plaintiff, at the time of the injury, was himself free from negligence directly contributing thereto. Fifth Prayer. The jury are instructed that the burden is upon the plaintiff to establish the negligence of the defendant by a preponderance of evidence, and that if the evidence in the case leaves the minds of the jury in a state of equipoise as to whether the defendant was negligent, then their verdict should be for the de fendant. Sixth Prayer. The court instructs the jury that if they find from the evidence that the plaintiff, by putting his head into the elevator shaft referred to, failed to exercise the care that a person of ordinary prudence should have exercised under similar circumstances, then the verdict of the jury must be for the defendant. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. E. M. Sturtevant and Edgar Allan Poe, both of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellant. William L. Marbury, of Baltimore (L. Wethered Barroll, of Baltimore, on the brief), for appellee. ADKINS, J. Oscar G. Green, the appellee in this case, was severely injured while attempting to signal one of the elevators of the appellant in the Lexington Street Office Building on November 8, 1919. The building had not been quite completed, but elevators had been installed, and were being used for the purpose of conveying materials, workmen, and prospective tenants of the offices to and from the upper floors, of which there were 21. There are eight passenger elevators, four on the east and four on the west side of the corridor leading from the Lexington street entrance. There was one open well on each side in which the four elevators ran, with the necessary steel framing to give each elevator its own shaft, but not enough to inclose the shaft or screen one from the other. Nos. 7 and 8 adjoined each other and were on the east side of the corridor. No call bells had been attached or signals of any kind to enable those wishing to use the elevators to attract the attention of those operating the elevators, but gongs had been placed in the elevators to warn those working in and about the elevator shafts when the elevators were being, or about to be, moved. The primary purpose of the gongs was to warn workmen at the bottom of the shafts who were engaged in tiling the ground floors. It was the duty of the elevator boys to ring these gongs before starting the elevators, and intermittently while they were in motion. The speed capacity of these eleva time after the installation of the elevators they were raised and lowered by what are known as hoisting cables, but later a system known as compensating cables was introduced. Just when the change was made is one of the questions as to which there is a conflict of testimony. Appellee was president of the Agus Shade Carrier Company, which had the contract to supply shades for the windows. In connection with this work, it was necessary for him to visit the building frequently and to use the elevators in going from floor to floor. At the request of Alexander B. Evans, manager of the building for appellant, an appointment had been made for a meeting at the building on the morning of the accident, and on his way to meet the engagement appellee met Evans on the street and was told by him that it was impossible for him to turn back then, as he had an important meeting requiring immediate attention, and was requested to proceed to the building and look after matters there on which appellee's men were employed. He arrived there between 12 and half past 12 o'clock, took the elevator known as No. 7, and was carried to the seventeenth floor. It being dinner hour, he did not find his men at work, but inspected what they had been doing, and then went to elevator No. 7, intending to return to his office. This was between 12 o'clock and 12:30. What then happened, as testified to by appellee, was as follows: "It was lunch hour. The building was commost silent hour of the day when there was paratively silent; that is, it was possibly the work going on. I went up to the elevator shaft, made the usual alarms, rattling the door; they were all more or less loose in there and the iron not having been fastened up securely, and the tracks not straight, so you could make a little less fuss rattling the doors; whistled and called, 'Seventeenth floor,' or, 'Bring your elevator,' or something of that kind, trying to attract his attention. Then not having any response or not hearing the elevator, the cables in front of me being apparently stationary, I could not notice any movement of them, I walked down to the extreme south end of the building and retraced my steps after glancing out of the window, killing time waiting for the car." It appears from the record that No. 8 elevator, adjoining No. 7, was at that particular time not being used, although it was then operated interchangeably with No. 7. The witness was asked why he did not call down the shaft at the point where the elevator was not then running. He answered: "The door was open and there was more or less débris around on the floor, and I did not want to expose myself by taking a chance on falling in an open place. The other part was kind of a cage; there was nothing but the square openings, and I could put my head through, and if a foot did slip I would fall up (113 A.) The witness had previously testified that the door was in place at No. 7, but the glass had not been put in. cross-examination I think there was quite a bit of sand, said "he would try to give us the car some which shifts badly under your feet." time soon. He did not specify a week or ten days, or did not specify one day." that he knew it was dangerous to put one's Appellee admitted on head in an elevator shaft, and that on another occasion he had warned Evans of the danger when he saw him doing it. His ex"I walked to the entrance door and rattled cuse for doing it on the occasion of the accithe door and called, and then, not getting any dent was that there was no other way to atresponse and having in mind that I had been there before and had walked down to the door tract the attention of the elevator boy; that and all, and sufficient time had elapsed for the he did not know the compensating cables had boy to come up had he heard me at all or had been put in, and therefore thought when he he been willing to respond, and seeing the ca- saw the cables hanging taut and steady that bles hanging and being positive in my mind that they were the hoisting cables above the car those were the hoisting cables, to my knowl- and that the car was below; as with the edge there not having been any cables placed hoisting system, what one saw when the car underneath the car, and knowing from having was above him was loose, dangling chains taken the matter up in person with Mr. Evans and with the foreman of the elevator company, then I walked to the extreme right of the entrance * and placed my head through one of the doors. ** I put my head through in this position, just enough to get my mouth over so my voice would carry down, and the minute, just as I did that, I saw nothing but the bottom of the shaft. There was no car down there, as I had every reason to suppose and believe was there. There was nothing but the bottom of the shaft. I immediately jerked my head back to get it out. Just as I did, the elevator tapped me on the back of the head. * "Q. A descending elevator? Ans. Yes, a descending elevator. "Q. Where was the elevator when you put your head in? Ans. It was above me, on either the eighteenth or nineteenth or twentieth floors, I don't know which one, but it was above in were noiseless. "Q. Did you hear any bell rung? Ans. No, sir; that is the reason of my having to put my head through the door. There was no bell rung. When I first went there, I listened, and when I went back the second time, I listened for the bell. "Q. You were listening for the bell? Ans. Yes, sir; I was listening for the bell at the time I made these alarms, and shaking the door and calling and whistling. "Q. The building was comparatively quiet, you say? Ans. Yes. "Q. You know that there was no bell rung? Ans. Yes, there was positively no bell rung while I was at the elevator." The testimony of both appellee and of Mr. Evans, who was then the manager of appellant's building was that the compensating cables had been put on elevator No. 7 just before the accident. Appellee testified that a few days before the accident, in a conversation between appellee and the foreman in charge of the erection of the elevators, at which Evans was present, the foreman said it might be several days longer before he could get No. 7 equipped with compensating cables, a week or such a matter, Evans' version of the foreman's statement was that he hanging from one side of the car and not from the middle; that he had failed to get a response to his first efforts to attract the attention of the boy, and supposed, as the bell was not ringing and it was the noon hour, the boy was below eating his lunch. Not only appellee, but Evans and one or more other witnesses, testified it was customary to call up and down the shaft for the boy, and that it was necessary to do so in order to get him. The negligence attributed to appellant was the failure of the elevator boy to ring his gong before and while descending. In regard to the purpose of the gong the following testimony appears in the record by Evans, the manager of the building: "Q. So long as the elevators had not been furnished and the equipment had not been completed, what measures did you take to insure against or prevent the occurrence of accidents in the use of the elevators? Ans. Practically nothing. There was nothing done to prevent accidents further than the installation of a gong on the elevators. "Q. How would that prevent accidents? Ans. Just to warn those who were about the shafts. There were a good many people working in the elevator shafts during this time. "Q. Actually working in the shafts themselves, do you mean? Ans. Yes, actually working in the shafts themselves. "Q. What sort of work would they be doing in the shafts? Ans. Tile setting. "Q. Was that while the elevators were going up and down? Ans. Yes. the shaft, was a gong put on there to warn him "Q. Anybody who was wholly or partially in against the approach of the elevator? Ans. Yes. "Q. And the elevator boy had to sound the gong? Ans. Yes, the operator had to sound the gong. "Q. What means did they have of calling the elevator when it was a long distance up the shaft? How would the people down below notify the elevator boy what floor to come to? Ans. They had no means other than the calling down the shaft or whistling. They had no signals of any description. A man had to depend upon his own voice, make his own signal. "Q. Was that the way in which the elevator was usually called, by people calling up and down the shaft? Ans. Yes, at that time that was the only means they had of calling him. "Q. They had to put their heads in somewhat to do that, didn't they? Ans. If they did not, they got very poor results. A man standing out in the corridor and simply calling or whistling towards the opening, he might as well have gone over in the other corner of the building; the sound would have dissipated; you could not have gotten it anywhere. "Q. He had to put his mouth in anyhow? Ans. He had to at least do that much, yes." Carl A. Carlson, the man who had charge of installing the elevators and a witness for appellant, testified that the gong was put on the car to warn "working people around the shaft or in the building" that the car was in running motion. This witness was asked: "After the cars once began to carry passengers up and down, did you notice about the frequency of the trips, how often they were run up and down? Ans. I should say every ten minutes or so." have been withdrawn from the jury because of contributory negligence? On that question the case is very close to the border line, and it has been difficult to get away from the state of equipoise in which our minds were left by the cogent arguments of counsel on the respective sides. That condition of mind in itself seems to point to the correct conclusion, because if there is any doubt in the mind of the court as to whether any act of the plaintiff constitutes contributory negligence, it becomes a question for the jury. Thompson, in his exhaustive and authoritative commentaries on the Law of Negligence, at section 1087, says: "It is contributory negligence, as matter of law, to put one's head into an elevator well for the purpose of shouting for the car to come down, or of seeing whether or not it is coming, or who is in it. And he cites in support of this proposition Ramsdell v. Jordan, 168 Mass. 505, 47 N. E. 244; Mau v. Morse, 3 Colo. App. 359, 33 Pac. 283; and several other cases. At the conclusion of the testimony appel- See, also, Wright v. Selden-Breck Conlee offered three prayers and appellant six.struction Co. et al., 97 Neb. 840, 151 N. W. Appellant excepted specially to appellee's 926, L. R. A. 1915E, 740, and Derringer v. second prayer "because it presents an ab- Tatley, 34 N. D. 43, 157 N. W. 811, L. R. A. stract proposition of law." The court grant- 1917F, 187. ed appellee's second and third prayers and appellant's fourth and fifth prayers, and rejected appellee's first prayer and appellant's first, second, and sixth prayers, and overruled appellant's special exception. The one bill of exception is to the overruling of appellant's special exception to appellee's second prayer and to the rejection of appellant's first, second, and sixth prayers. The reporter will set out all the prayers of appellant and the second prayer of appellee. We find no reversible error in the ruling on appellee's second prayer and appellant's special exception, provided there was no error in the refusal to direct a verdict for the appellant. [1, 2] The sixth prayer of appellant omitted to require the jury to find that the failure of appellee to exercise reasonable care (if the jury should find such failure) directly contributed to the injury. Besides, appellant's fourth prayer correctly and clearly states the proposition of law involved in the sixth prayer. There was no error, certainly no reversible error, in the rejection of the sixth prayer. [3] The question about which we have 'found serious difficulty is: Should the case Some of these cases in their facts are strikingly like the case at bar. There probably can be found no dissent anywhere to the above proposition as applied to elevators regularly equipped and in full and regular operation. But in view of the decision in Winkelmann & Brown Drug Co. v. Colladay, 88 Md. 78, 40 Atl. 1078, it cannot be said in this state that it is contributory negligence per se to put one's head in an elevator shaft under all circumstances-especially where apparently for the time being the elevator is not being operated. And when it depends upon the circumstances, and the conduct of the plaintiff is not such as to leave no room for difference of opinion in the minds of reasonable men as to its negligent character, the question should be submitted to the jury. As we are unable to say in this case that there is undisputed evidence of any act of appellee about the negligent character of which, under all the circumstances, there is no room for difference of opinion in the minds of reasonable men, we must affirm the judgment. Judgment affirmed, with costs to appellee. (137 Md. 573) (113 A.) tion that defendant received the notice, and MCFERREN v. GOLDSMITH-STERN CO. testimony by an officer of defendant that he (No. 70.) (Court of Appeals of Maryland. Jan. 13, 1921. Rehearing Denied March 3, 1921.) 1. Husband and wife 19(2)-Separate estate does not lessen husband's obligation to support wife. The fact that the wife was possessed of a separate estate does not lessen the husband's obligation to support her, and therefore, in an action for the price of necessities furnished to the wife, it was not error to exclude evidence that the wife possessed property of her own. 2. Husband and wife 19(13)-Wife can pledge husband's credit only after he fails to support. The agency of the wife, based on necessity, which authorizes her to pledge her husband's credit for necessaries furnished her, and which cannot be revoked by the husband, arises only when the husband has failed to furnish the necessities to her, or to furnish her with the means for purchasing such necessities. 3. Husband and wife19(13)-Wife's agency not of necessity must be proved. Where a creditor relies upon the wife's agency in fact to pledge the credit of her husband, not upon her agency of necessity because of his failure to support her, he must prove such agency as in other cases. 4. Husband and wife 19(13)—After separation, wife receiving agreed support cannot pledge husband's credit. Where the husband and wife were separated and he was paying for her support, either as alimony under court order or in accordance with an agreement between them fixing such amount as adequate and satisfactory, the wife cannot pledge her husband's credit under the presumed authority of an agency of necessity. did not remember seeing the notice and was sure it had not been received did not conclusively rebut the presumption, but merely made it a question for the jury whether the notice was received. 7. Husband and wife 235(3)-Prayer as to husband's liability after separation held erroneous for disregarding alimony payments. In an action against a husband for clothing furnished the wife, plaintiff's prayers that if defendant and his wife were separated the husband was liable for necessaries furnished the wife, if he did not provide them for her, were erroneous, as withdrawing from the jury the issue made by the evidence that the husband paid to his wife the amount agreed upon between them as necessary for her support. 8. Husband and wife 235 (3)-Prayer authorizing verdict for clothing furnished wife held erroneous. In an action for clothing furnished to defendant's wife, plaintiff's prayer that if the wife was without necessary clothing through her husband's fault and received no money from him for such clothing the verdict should be for plaintiff, though it had been notified not to credit the wife, was palpably defective for failing to require a finding that plaintiff sold the articles in question to the wife. 9. Husband and wife 235(3)-Husband's prayers held erroneous, as withdrawing issue of wife's agency in fact. In an action against a husband for clothing sold to his wife on the husband's credit, prayers by the husband correctly stating the law as to the wife's agency from necessity to pledge her husband's credit, but in effect withdrawing from the jury the issues raised by the evidence of her agency in fact to pledge his credit, were properly refused. Appeal from Court of Common Pleas of Baltimore City; Chas. W. Heuisler, Judge. 5. Husband and wife 235(3) Assumpsit by the Goldsmith-Stern Comagency in fact held erroneous for disregard-pany, a corporation, against Frederick Mcing evidence of revocation. Prayer on In an action against a husband for clothing sold to the wife on the husband's credit, plaintiff's prayer that if the wife had purchased similar garments on other occasions and had paid for them plaintiff could recover, unless the husband had provided the wife with necessary wearing apparel or with sufficient money to procure it, rested upon the hypothesis of an agency in fact which could have been terminated by the principal at any time before it was executed, and was erroneous as withdrawing from the jury evidence that the husband had revoked such agency by notice to defendant. 6. Evidence 71, 89-Testimony notice was mailed raises presumption of receipt; presumption held not conclusively rebutted. Testimony by a husband that he signed a notice to defendant revoking his wife's agency to pledge his credit and mailed it, properly addressed, to defendant, creates a presump Ferren and another. Judgment for the plaintiff against the named defendant, and he appeals. Reversed and remanded for a new trial. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Harry N. Abercrombie, of Baltimore, for appellant. B. H. Hartogensis, of Baltimore, for appellee. OFFUTT, J. The appeal in this case was taken from a judgment of the superior court of Baltimore City against the appellant in favor of the plaintiff in an action in assumpsit brought by the appellee against the appellant and Adelaide McFerren, his wife, to recover the price of certain wearing apparel |