that before the end of the fiscal year ending June 30, 1905, Isaac H. Francis became ill, and was unable to attend the regular stockholders' meeting on August 1, 1905, and died September 25, 1905; that at the meeting of August 1, 1905, Robert D. Hopkins, Isaac H. Francis, Walter Hopkins, and William Harry Francis were elected directors of said company, and that on August 30, 1905, a meeting of said directors was held, at which all were present except Isaac H. Francis, who was still ill, but who, it is charged, received no notice of said meeting. At that meeting the officers above named were re-elected to their respective offices. The bill further charges that at said meeting "the directors went through the form of fixing the salary of Robert D. Hopkins at $10,000 a year and that of Walter Hopkins at $8,000, and also "went through the form of passing a resolution" that the inability of the vice president to render any assistance for the past two years to the business made it necessary for his son William Harry Francis, to take his place, so far as the management of the male help was concerned and the supervision of that part of the business, and that it was deemed proper to leave the question of the salaries of Isaac H. and William Harry Francis to be settled thereafter; that at a meeting October 21, 1905, Robert D. Hopkins, Jr., was elected a director in place of said Isaac H. Francis, then deceased; that Robert D. Hopkins resigned as treasurer, retaining the position of president, and Walter Hopkins resigned as secretary. William Harry Francis was elected vice president for the unexpired term of his father. Walter Hopkins was elected treasurer, and Robert D. Hopkins secretary. Salaries were then fixed as follows: President, $10,000; vice president, $3,000; treasurer, $8,000; secretary, $2,600. On August 7, 1906, the same officers were elected, and the same form was gone through for a further increase of salaries, as follows: President, $16,000; vice president, $7,000; treasurer, $11,000; secretary, $3,600.

The bill then charges "that the above-recited increases in the personal salaries of the Messrs. Hopkins were illegal and void (1) as in violation of section of article 2 of the by-laws of said company, which provides that the compensation to be paid the president, vice president, treasurer and secretary 'shall be designated by the board previous to their election.' (2) Because it was not competent for Robert D. Hopkins and Walter Hopkins after they had been elected and had assumed the fiduciary position of directors to vote to themselves an increase of salary, and that it was not within their power to represent and act for that corporation in a matter in which they have a personal interest in conflict with the interest of the corporation. (3) And because $7,000 a year is a reasonable and adequate salary to compensate either Robert D. Hopkins or Walter Hopkins for any services which they have rendered, or are

capable of rendering to the corporation; and that the salaries so voted are excessive and unreasonable, and that the voting of them is an unlawful and covert method on the part of the Hopkinses, as the owners and controllers of a majority of the stock, to divert into their own pockets money which should rightfully go as dividends to all the stockholders pro rata."

The bill further charges that the two Hopkins above named who control said company have been unwilling to allow the estate of said Isaac H. Francis the salary due him at the rate of $7,000 per annum from July 1, 1905, to the date of his death, September 25, 1905. Also that the plaintiff had before filing his bill made written demand on said company to compel Robert D. Hopkins and Walter Hopkins to make restitution to said company of the excess of salaries over $7,000 per annum received by each of them, with which demand said company refused to comply. The prayer of the bill is that the Brigham-Hopkins Company be enjoined from paying any further salary to Robert D. Hopkins until after such time as the salary theretofore received by him, will, if calculated at $7,000 a year, pay him for the services which he shall then have rendered said company; and that he be required to account with said company, and repay it, with interest at 6 per cent. per annum from the date of their wrongful receipt by him all sums in excess of $7,000 a year; and for such other and further relief, etc. A similar bill was filed by the plaintiff on the same day against Walter Hopkinsmaking the same allegations and praying the same relief; and the two cases, by agreement, were consolidated, and heard and determined together.

The defendant corporation answered, admitting the allegations as to its incorporation, the amount of its capital stock, and the holding of the shares among its stockholders; also, that the salaries voted the various officers are correctly stated in the bills; but alleges that. Isaac H. Francis had been ill for four years prior to June 30, 1905, and that for two years before his death he had been able to render very little assistance to the business, and was very little at the factory, though he was allowed for the full four years to draw his salary of $7,000. It alleges that the meeting charged in the bill to have been held August 30th was in fact held on August 3d, and that due notice thereof was given to said Isaac H. Francis, and that the plaintiff also received prompt notice of all said increases of salary, and is guilty of laches in objecting thereto. It alleges that the provision of the by-law mentioned in the bills is directory merely, and not mandatory, and that the spirit of the same has been in no way violated by any act of any of the defendants. It alleges that all the salaries voted are fair and reasonable, and that the increases from time to time therein have not been proportionately more than the increase in the volume of busi

ness and the net profits of the company; and that the officers devote their whole time to the management and extension of the business, and that it will appear by reference to the said increases of salary that the salary which has increased in the largest proportion of all is that of William Harry Francis, a brother of the plaintiff, and a son of Isaac H. Francis, deceased. Robert D. Hopkins and Walter Hopkins adopted the answer of the defendant corporation.

The only testimony offered by the plaintiff was that of Dr. Arthur Williams with reference to the illness of Isaac H. Francis, who said Mr. Francis was totally disabled physically a year before his death, and that for one year previous to September, 1904, he was so far physically disabled as to give only about two-thirds of his time to the business, going to it about 10 a. m. and leaving about 4 p. m. The plaintiff also put in evidence the minutes of various meetings of the directors, showing who was present, and what was done at those meetings.

Robert D. Hopkins and Walter Hopkins testified for the defendants, explaining the services rendered by themselves and by Isaac H. Francis from time to time to the company, and the character and extent of the business, and of its increase, as well as the increase in profits. Each of them said that he did not vote at any time upon the increase of his own salary.

It was shown that ever since 1900 Robert D. Hopkins bought all the goods for the company, involving the exercise of wide knowledge and sound judgment; and that these purchases amounted to over $500,000 a year; that he had sole charge of the financial end of the concern, borrowing large sums of money for the business of the firm, and individually indorsing the firm paper to the extent of $200,000 at one season. It was shown that Walter Hopkins attended personally to the selling of the goods and the supervision of subordinate salesmen; that he sold from $175,000 to $250,000 of goods annually, and also designed all the styles. It was shown from the books of the company that the net sales for the year ending June 30, 1907, were $907,000 and the net profits on sales $89,214.19. Mr. Samuel Rosenthal of Strauss Bros., the second largest clothing manufacturing firm in Baltimore, testified in view of the capital, net sales, and profits of the BrighamHopkins Company as proved in the case that the salaries of Robert D. and Walter Hopkins objected to were reasonable and fair; indeed "extremely moderate," and that they were underpaid instead of overpaid. Wm. P. Montague, a straw hat manufacturer of New York City, and also president of the Montague & Gillet Company-a New Jersey corporation doing business in Baltimore City, and formerly connected with the Brigham-Hopkins Company, testified that he knew Robert D. Hopkins, and regarded him as about the most able man in his line of business; that he was

the backbone of that concern; and that assuming the capital, net sales and profits to be as stated, he considered a salary of $16,000 for him and $11,000 for Walter Hopkins to be very moderate.

The foregoing statement of the pleadings and of the testimony fairly presents the case as presented to the court below. The learned judge filed a very careful and elaborate opinion in which he reviewed all the evidence, and carefully considered the law applicable thereto, and held (1) that the salaries objected to were not excessive and unreasonable, but were just and proper; (2) that they were not invalid because only three members of the board were present when they were voted. This conclusion upon this point was expressed in these words, having special reference to all the facts in this case: "It seems to me that even where one votes for his own salary in a board where he is given the authority to act by the by-laws adopted by the stockholders, and his vote is essential, the act so done should not be absolutely void, but should be subject to close scrutiny by the courts, with the burden of proof upon the person benefited by the act, to show that it was just and proper, and that no advantage was taken of the stockholders"-and we concur in this view of the law. (3) He held that the provision of the by-law that the offices should be filled before the salaries were fixed was not mandatory, but directory merely.

The reasons for these conclusions are stated with such clearness, and so well supported by authority, that we are satisfied no additional force could be added to them by any opinion we might file in the case. We will therefore affirm the decree of the court below for the reasons set out in the opinion of that court, which we will adopt, and request the reporter to include in the report of this case. Decree affirmed, with costs above and below.

(108 Md. 456)

BOOTH v. McLEAN CONTRACTING CO. (Court of Appeals of Maryland. June 24, 1908.)

1. NEGLIGENCE-QUESTIONS FOR JURY-CON

TRIBUTORY NEGLIGENCE.

The question of contributory negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusion therefrom, and, where a doubt exists as to whether plaintiff's conduct under all the facts and circumstances constitutes such contributory negligence as to prevent him from recovering, the question is one of fact for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 286, 296, 299, 333-346.] 2. APPEAL AND ERROR-REVIEW-SCOPE.

A prayer directing a verdict for defendant because of plaintiff's contributory negligence necessarily presupposes primary negligence, which would sustain an action but for the concurrence of the contributory negligence, and the special matter for consideration on appeal is whether on the evidence the case should have been submitted to the jury for its determina

tion of the question of contributory negligence, and the question of defendant's negligence is not an issue.

8. MASTER AND SERVANT-ACTIONS FOR INJURIES QUESTIONS FOR JURY - CONTRIbuBUTORY NEGLIGENCE.

Whether a laborer who caught and injured his hand between the joist under a hopper, from which cars were filled with dirt, and the top of the car while attempting to put an empty car on the track and push it through the tunnel under the hopper, was guilty of contributory negligence, held for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1089-1132.]

Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott, Judge.

Action by William T. Booth against the McLean Contracting Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and WORTHINGTON, JJ.

Lee S. Myer and David Ash, for appellant, John E. Semmes, for appellee.

BRISCOE, J. This action was brought by the appellant to recover damages of the appellee, the McLean Contracting Company, a body corporate, engaged in the construction business, for personal injuries sustained by him while in the employment of the appellee company as a laborer. The declaration contains three counts. The first charges negligence in the construction and maintenance of certain cars operated by the company. The second charges negligence in failing to furnish proper machinery, and a properly constructed structure or trestle upon which to operate its cars. The third charges negligence in failing to furnish the appellant with a safe, suitable, and properly lighted place in which to perform his work. The questions and those brought to this court for review relate to the rulings of the court in the rejection of the plaintiff's prayers and in the granting of the defendant's prayer, which instructed the jury that the plaintiff was guilty of contributory negligence, and by such negligence directly contributed to the accident in question, and that their verdict must be for the defendant.

Assuming, then, the negligence of the defendant, the question is: Were the facts and circumstances of the case so patent and plain as to have justified the court in pronouncing them contributory negligence in law, and in withdrawing the case from the consideration of the jury? The law is well settled in this state bearing upon this class of cases, and it is this: Where the facts of a case are undisputed, or where but one reasonable inference can be drawn from them, the question is one of law for the court, but, where the facts are left by the evidence in dispute or where fair minds might draw different conclusions, the case should go to the jury. In other words, all the cases hold that, unless there is some prominent and decisive

act in regard to the effect and character of which no room is left for ordinary minds to differ, courts will not withdraw the case from the consideration of the jury. In the case of Gardner v. Michigan Central R. R. Co., 150 U. S. 359, 14 Sup. Ct. 140, 37 L. Ed. 1107, the Supreme Court thus lays down the rule: "The question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusion from them. A case should not be withdrawn from the jury, unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish." All of the cases in this state hold that courts should never assume the responsibility of withdrawing a case from the jury, unless the case is a very clear one and presents some prominent and decisive act in regard to the effect and character of which no room is left for ordinary minds to differ. Where a doubt exists as to whether the conduct of the plaintiff under all the facts and circumstances constitutes such contributory negligence as should prevent him from recovering, the question is one of fact, to be determined by the jury.

In the case at bar the sole question for our consideration is whether or not the court committed an error in granting the defendant's prayer, which withdrew the case from the jury because of the alleged contributory negligence on the part of the plaintiff. In this case the question of negligence vel non of the defendant is not an issue, because the prayer granted at the instance of the defendant assumes the negligence of the appellee as one of the contributory causes of the accident. In Strauss v. United Rys. Co., 101 Md. 498, 61 Atl. 137, it is said: "The prayer assumes the negligence of the appellee as one of the contributory causes of the accident, and therefore the special matter for us to consider is whether upon the evidence contained in the record and substantially restated here the case should have been submitted to the jury for its determination as to the alleged contributory negligence of the appellant." The law applicable to this character of case is clear and well settled. In Vonderhorst Brewing Company v. Amrhine, 98 Md. 414, 56 Atl. 833, 836, this court said: "If there was no primary negligence on the part of the defendants, there could be no contributory negligence on the part of the plaintiff. Contributory negligence necessarily presupposes primary negligence, which would of itself sustain an action but for the concurrence of the contributory negligence." In the case of Cooke v. Street Railway Company, 80 Md. 558, 31 Atl. 327, 329, it is said: "Where the nature and attributes of the act relied on to show negligence contributing to the injury can only be correctly determined by considering all the attending circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not

for the court to determine its quality as matter of law." Strauss v. United Rys. Co., 101 Md. 499, 61 Atl. 137. The question of contrib. utory negligence in the case now before us is not free from difficulty and doubt, and, such being the case, it was a question of fact, to be determined by the jury, and not by the court.

Unless the conduct of the plaintiff relied upon as amounting in law to contributory negligence is established by clear and uncontradicted evidence, the case will not be withdrawn from the jury. At the time of the accident the plaintiff was employed by the defendant company as a laborer at Riverside, Baltimore county. There was a direct conflict between the evidence on the part of the plaintiff and that on behalf of the defendant as to the plaintiff's duties in respect to the work he was employed to do. The appellee company was engaged in the construction business, and was at the time of the accident unloading dirt from scows in the river, by means of cars loaded from and through a hopper. The dirt was raised from the scows by a derrick, and dropped in a hopper supported by a trestle. The empty cars were placed under the hopper, loaded, and carried away. The cars were then pushed by men to the dump and emptied. They would then be sent back or returned to be reloaded under the hopper. The plaintiff was at work on a trestle or structure on which the cars were operated, and, while attempting to put one of the empty cars on the track and push it through the tunnel under the hopper, had his hand caught between the joist under the hopper and the top of the car, and was severely injured. The plaintiff testified upon this subject as follows: "Q. When in this position, what did your duties require you to do? A. I was supposed to receive these cars and take them back, and I received one car as they filled them and leave one car up as they filled them. I leave them down to the hopper, and the man at the other end receives them and leaves them out. Q. Explain how you would do this work? A. I would have to go underneath there and go across and pull them through. Q. How did you pull them through? Just catch hold of the car at the top, and pull them through, and check them until the five came through." He further testified that while it was his duty to receive the cars, and take one car and push it back for loading, it was also his duty to go under the hopper to receive the cars and bring them out and keep the track clear. And in answer to the question "You don't know then what put it off the track?" answered: "I don't know what put it off, I found it off, and it was my place to put it on." He also testified that he was not warned by the superintendent from going under the hopper because "that was where I was bound to go in there, that was my place"; that, when the

A.

cars did not go through, it was his duty to go and bring them through. The testimony on the part of the appellee company was to the effect that the plaintiff was employed "to attend to the cars," and his duty was to receive the cars after they came through the tunnel and have them loaded, and he was warned not to touch them until they were clear of the hopper. There was other evidence on the part of the plaintiff and defendant at the trial in the court below, but from an examination of the record it clearly appears that there is a direct conflict in the testimony as to the main facts of the case, and, this being so, the question of contributory negligence on the part of the plaintiff was one of fact, to be determined by a jury. The danger to which the accident is attributed was not one which the plaintiff should have been required to look out for and avoid, but one that he had every right to expect that proper precaution on the part of the appellee had been adopted to avoid. Assuming the theory of the plaintiff's case to be supported by the evidence if the car causing the injury had been in a good condition, or the roof between the car, and the first joist had been higher, the accident would not have occurred. We fail to find in the evidence any prominent and decisive act on the part of the plaintiff which authorized the court in withdrawing the case from the jury. The testimony of the plaintiff and his witnesses was more or less contradicted by the evidence submitted on the part of the appellee, but this contradiction did not justify the court in declaring the conduct of the plaintiff contributory negligence per se. On the contrary, all the cases hold that the court should in no case take the question of negligence from the jury, unless the conduct of the plaintiff relied on as amounting in law to contributory negligence is established by clear and uncontradicted evidence.

We are therefore of the opinion that this case should have been submitted to the jury, and, for the error in granting the defendant's prayer which instructed the jury that the plaintiff was guilty of contributory negligence and their verdict must be for the defendant, the judgment will be reversed and a new trial awarded. The plaintiff's prayers appear to be free from objection and properly presented the law, as applicable to the plaintiff's theory of the case.

Judgment reversed and new trial awarded, with costs.