trine was declared by this court in Orem v. |judgment shall be satisfied by the surety, the Wrightson, 51 Md. 43, 34 Am. Rep. 286, to creditor or his attorney of record shall asbe a peculiar feature of equity not founded sign the same to the surety, and s..ch ason contract but having its origin in a sense signment being filed in the court in which the of natural justice. It was there said: "So judgment was rendered the assignee shall be soon as a surety pays the debt of a prin- entitled to execution in his own name against cipal debtor, equity subrogates him to the the principal for the amount so paid by the place of the creditor and gives him every surety." The obvious purpose of these secright, lien, and security to which the creditor tions, which are a re-enactment in part of could have resorted for the payment of his Acts 1763, c. 23, is, as was said by our preddebt. As said in the annotation to the case ecessors in Creager v. Brengle, supra, in conof Dering v. Earl of Winchelsea, 1 Lead. struing the act of 1763, "to place the surety Cases in Eq. 60: 'Payment by one who stands where he should stand in the shoes of the in the relation of surety, although it may judgment creditor," and, if the creditor reextinguish the remedy or discharge the se- fuse to make such assignment to the surety curity, as respects the creditor, has not that upon being tendered by him the amount of effect as between the principal debtor and the debt, the latter upon established printhe surety. As between them it is in the ciples of equity has a right in a court of nature of a purchase by the surety from the chancery to call on the creditor for the ascreditor. It operates as an assignment in signment. Hollingsworth v. Floyd, supra; equity of the debt and all legal proceedings Creager v. Brengle, supra; Smith v. Anderupon it, and gives a right in equity to call son, supra; and note "e" to Nelson v. Webfor an assignment of all securities, and, in ster, at page 553 of 68 L. R. A. favor of the surety, the debt and all its The appellant, without seriously controobligations are considered as still subsist-verting the general propositions stated by us, ing.' See, also, to the same effect, Hollings- contends: First, that the appellee being the worth's Adm'x v. Floyd, 2 Har. & G. 90; original payee of the note is not entitled to Creager v. Brengle, 5 Har. & J. 240, 9 Am. be regarded as a surety within the meaning Dec. 516; Barron v. Whiteside, 89 Md. 460, either of the equitable doctrine of subroga43 Atl. 825; Sotheren v. Reed, 4 Har. & J. tion or the sections of the Code to which we 309; Ghiselin v. Fergusson, 4 Har. & J. have referred; and, secondly, that the maker 522; Robertson v. Mowell, 66 Md. 530, 8 Atl. of the note has a defense to it against the 273; Smith's Ex'rs v. Anderson, 18 Md. 520; appellee of which he would be deprived by Am. Bonding Co. v. Mech. Bank, 97 Md. 605, an assignment of the judgment against him 55 Atl. 395, 99 Am. St. Rep. 466; Alexander to the latter. We regard neither of these v. Fidelity & Deposit Co. (Md.) 70 Atl. 209; objections as sound. The appellant in giving and notes to Nelson v. Webster, 68 L. R. A. to the appellee a negotiable promissory note 513, where a copious and well-arranged col- put in his hands a form of obligation which lection of the authorities upon the various he might be expected in the ordinary course applications of the doctrine of subrogation of business to indorse and transfer to third will be found. parties. Although the position of the appellee upon the note at its inception was not that of a surety for the maker, yet, when he indorsed it and transferred it to a third party, he thereby became a guarantor for its payment to his indorsee and all future bona fide holders of it for value. Certainly as between him and the appellant, who became one of such future holders of it, he assumed the obligation of a guarantor, and it was in the enforcement of that obligation alone that the judgment was obtained against him upon which the appellant was about to issue execution when the bill in the present case was filed. Under these circumstances the appellant, while insisting upon the enforcement of the appellee's obligation as guarantor of the note, cannot be permitted to deny or refuse to recognize the rights of subrogation either equitable or statutory which accrue to the appellee when he satisfies his obligation as guarantor by payment of the guaranteed debt. Nor can the appellant escape or evade his duty to assign the judgment to the appellee by suggesting, as he does in his answer, that the maker of the note may have a defense to it, in

The equitable doctrine of subrogation is not limited in its operation to the relation of formal suretyship, but it applies in full force to the situation of all persons upon whom there is a fixed liability, whether as surety, indorser, acceptor, or guarantor, to pay a debt which the principal debtor ought to pay. Harris on Subrogation, § 174; Dixon on Subrogation, pp. 139, 140; Pomeroy's Equity, vol. 6, §§ 912, 921. The right of the appellee to an assignment of the judgment against the maker of the note does not rest entirely upon the principle of subrogation. Section 5 of article 8, Code Pub. Gen. Laws 1904, provides that: "The surety in any bond or other obligation for the payment of money, or promissory note or the indorser of any protested bill of exchange who shall pay or tender the money due thereon, whether the whole be due or part has been previously paid, shall be entitled to an assignment thereof, and may by virtue of such assignment maintain an action in his own name against the principal debtor." Section 6 of the same article provides that: "When a person shall recover judgment against the principal debt

In an action for injuries to a child less than three years old struck by a street car, evi dence held to require the submission to the jury of the issue of the negligence of the motorman in failing to exercise reasonable care after he saw or could have seen the child's peril.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. 88 244, 253; Dec. Dig. § 117.*]

4. STREET RAILROADS (§ 81*)-OPERATION OF CARS-CARE REQUIRED.

A motorman must have his car under betusually cross than in the middle of the block. ter control at a street corner where pedestrians

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 172-177; Dec. Dig. § 81.*] 5. NEGLIGENCE (§ 85*) CARE REQUIRED OF INFANTS.

"Ordinary care" is a relative term, and the same standard is not expected of an infant as of a mature man, and what will be regarded as carelessness in the latter will not necessarily be so in the case of the former.

might be rendered unavailing if the judg- 3. STREET RAILROADS ( 117*) COLLISIONS ment were assigned to him. The maker -INJURY TO CHILD ON TRACK-QUESTION FOR JURY. of the note is not a party to this suit, which was instituted to enforce the rights of the appellee against the appellant, and the defenses, if any, of the maker of the note, cannot be indirectly asserted or determined here. If there exists any sufficient equitable reason, which was not available to the maker of the note as a defense to the suit on it by its holder, why the appellee when he obtains an assignment of the judgment should not be permitted to enforce it, that reason can be asserted by the maker in an appropriate bill in equity at the proper time. The appellant's brief strongly relies upon the cases of Schleissman v. Kallenberg, 72 Iowa, 338, 33 N. W. 459, 2 Am. St. Rep. 247, and Bank of Old Dominion v. Allen, 76 Va. 200, as authorities for its contention. A careful examination of those cases discloses the fact that the actual decision in each of them was entirely consistent with the principles upon which we have relied in arriving at our present conclusion. In each of those cases the real question at issue was the right of an accommodation indorser of a note, who had paid and secured an assignment of a judgment on it against its maker in favor of a subsequent holder, to enforce that judgment, and in each case the indorser was held to be entitled to enforce the judgment. As an accommodation indorser is held by all of the authorities to be entitled to the rights of a surety, those cases were correctly decided. We therefore deem it unnecessary to discuss the soundness of the obiter dicta, quoted in the appellant's brief, from the opinion in Schleissman's Case, touching the obligation, in general, of the maker of a note to its payee who, having indorsed it, pays and takes an assignment of a judgment on it obtained by a subsequent holder against

the maker.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 121, 123; Dec. Dig. § 85.*] 6. STREET RAILROADS (§ 117*)-COLLISIONS— CONTRIBUTORY NEGLIGENCE-QUESTION FOR

JURY.

In an action for injuries to a child less than three years old struck by a street car, evidence held to require the submission to the jury of the issue of the contributory negligence of the child.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 248, 249, 255; Dec. Dig. § 117.*]

7. NEGLIGENCE (§ 136*)

IMPUTED NEGLI

GENCE QUESTION FOR JURY.
In an action for injuries to a child less
than three years old struck by a street car, evi-
dence held to present a question for the jury
as to the imputable negligence of the child's
parents.

Cent. Dig. 352; Dec. Dig. § 136.*]
[Ed. Note.-For other cases, see Negligence,

8. STREET RAILROADS (§ 95*) — COLLISIONS

LIABILITY.

--

Where a child less than three years old The decree appealed from will be affirmed. wandered away from home and into the streets, Decree affirmed, with costs.

(110 Md. 211)

where it was struck by a street car, the company was liable, in the absence of responsible contributory fault, if the accident might have been avoided by the exercise of ordinary care. [Ed. Note. For other cases, see Street Rail

UNITED RYS. & ELECTRIC CO. OF BAL roads, Cent. Dig. § 202; Dec. Dig. § 95.*]

TIMORE v. CARNEAL.

(Court of Appeals of Maryland. Feb. 17, 1909.) 1. APPEAL AND ERROR (§ 927*)-REVIEW OF RULING ON DEMURRER TO EVIDENCE-TRUTH OF PLAINTIFF'S EVIDENCE.

9. NEGLIGENCE (§ 95*)-CONTRIBUTORY NEGLIGENCE-NEGLIGENCE OF PARENT IMPUTED TO

CHILD.

A child who wanders away from home and into the streets, where it is struck by a street car, will not be prevented from recovering for the injuries received in consequence of any neg

The court in reviewing the refusal of the court to grant defendant's prayer in the nature of a demurrer to the evidence must as-ligence of its mother. sume that plaintiff's evidence, though contradicted, is true.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3748; Dec. Dig. § 927.*] 2. NEGLIGENCE (§ 136*)—QUESTION FOR JURY. Though negligence may become a matter of law, the circumstances must be clear and decisive to justify a withdrawal of the case from the jury.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-306; Dec. Dig. § 136.*]

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 151-156; Dec. Dig. § 95.*] 10. STREET RAILroads (§ 95*)-Care REQUIR ED IN OPERATION OF CARS CHILDREen.

Where, in an action for injuries to a child struck by a street car, the evidence showed that the child less than three years old wandered away from home and into the street, and that her situation at a street corner was apparent, an instruction that the infancy of plaintiff did not change the degree of diligence to be used by

the company in the operation of its cars was from the want of ordinary care and prudence properly refused. on the part of her parents, directly contribu[Ed. Note. For other cases, see Street Rail-ting to the accident. roads, Cent. Dig. § 202; Dec. Dig. § 95.*] IMPUTED NEGLI

Appeal from Baltimore City Court; Alfred struct the jury that the undisputed evidence S. Niles, Judge.

the ordinary degree of care, then the defend- | SCHMUCKER, BURKE, WORTHINGTON, ant is not responsible for the accident, and THOMAS, and HENRY, JJ. the verdict must be for the defendant.

"(5) The defendant prays the court to instruct the jury that, if they find from the evidence that the motorman of the defendant company's car at or about the time of the injury to the plaintiff was acting with usual care and prudence, their verdict must be for the defendant.

"(6) The burden of proof is upon the plaintiff to show that the injury complained of was caused by the want of ordinary care on the part of the defendant or its employés, and, unless the jury shall be satisfied by the preponderance of testimony that the injury complained of was directly caused solely by the want of ordinary care on the part of the defendant or its employés, the plaintiff is not entitled to recover, and the verdict of the jury must be for the defendant.

"(7) The defendant prays the court to instruct the jury that there can be no recovery in this action unless the jury find from the evidence that the plaintiff has affirmatively shown by a fair preponderance of testimony that the accident was caused through the negligence of the defendant, and the jury are instructed in determining whether or not the defendant was guilty of negligence that the law makes no unreasonable demand, and that it will not consider the defendant as guilty of culpable negligence in failing to take precautions which in the cpinion of the jury no man of ordinary prudence would have taken under the circumstances.

"(8) The defendant prays the court to instruct the jury that the infancy of the plaintiff does not change the degree of care and diligence to be used by the defendant in the manipulation of its cars.

"(9) The defendant prays the court to instruct the jury that if they find from the evidence that the parents or person in charge of the plaintiff at or about the time of the happening of the accident were negligent in their care of the said plaintiff, and that the negligence directly contributed to produce the accident mentioned in the evidence, then there can be no recovery in this case, and the verdict of the jury must be for the defendant."

Albert E. Donaldson and J. Pembroke

Thom, for appellant. John Philip Hill and
William Colton, for appellee.

HENRY, J. This is an appeal taken by the defendant below from a judgment for $7,500 rendered against it in the Baltimore city court in an action by the appellee to recover damages for personal injuries sustained in an accident which occurred March 14, 1907. at the corner of St. Paul and Twenty-Third streets, in the city of Baltimore, and which it is charged in the declaration was the result of the negligence of the defendant, without any negligence on the part of the plaintiff directly contributing thereto. In the court below three exceptions were taken by the appellant-the first to the admissibility of certain testimony, and the second and third to the action of the court upon the prayers offered by the litigant parties. (The reporter will please set out these prayers in reporting the case.)

The first prayer of the defendant, offered at the close of all the testimony, being in the nature of a demurrer to the evidence, brings up for review the testimony in the case. The plaintiff was a female infant, not quite three years of age, who had slipped away from her mother's home at 2234 North Calvert street and had strayed from them to the corner of St. Paul and Twenty-Third street.

The only eyewitness of the accident produced on the part of the plaintiff was William A. Lewis, a colored wagon driver, whose testimony it is important to consider. In his examination in chief this witness states: "On this morning I had on a load of furniture going up the right-hand side of St. Paul street, about 20 feet south of Twenty-Third street, when I saw this car coming, and I saw this little child start from that corner, which, I guess, is the northeast corner to the southwest corner, and I saw this car coming at a good speed, and I said, "That child is gone,' and almost in the time I could say that the car had struck her, and I thought it had cut her in half; and I got so nervous I didn't know what I was doing. I saw a lady standing on the corner trying to wave the car down in the first place, but the car didn't stop, and this man didn't seem to see any one, as he was looking towards the college." The college referred to by this witness is the Woman's College, located on the west side of St. Paul street, between Twenty-Third and Twenty-Second streets, and which was to front and right of the car as it was going south down St. Paul street. The witness further testified that, when he first saw the car, it was about 100 feet north of Twenty-Third street, that it passed Twenty-Third street pretty rapidly, but after the accident stopped about 25 feet south of said street. On

The court refused plaintiff's third prayer, and modified plaintiff's fourth prayer by adding thereto the following: "But the jury are not to award any damages for any injuries, except those proved by the evidence with a reasonable certainty, and the testimony of Dr. Charles L. Rumsey as to the effect of the injuries to the pelvis testified to by him upon child-bearing by the plaintiff is too vague to be considered by the jury”— and granted the said prayer as thus modified.

The court refused defendant's first, second, eighth, and ninth prayers, and gave the third, fourth, fifth, and sixth.

when he first saw the car, it was about 100 of the defendant, is true, and, so assuming, feet north of Twenty-Third street, and at we think it was sufficient, as tending to show that time the child was "standing still" on negligence on the part of the defendant, to the northeast corner of St. Paul and Twen- take the case to the jury. Courts are cauty-Third streets, and he could not tell how tious not to invade the province of the jury, far the car had gone from this point, 100 feet and, although the question of negligence may above Twenty-Third street, when the child become a matter of law, the circumstances started to cross the street. The witness first of the case must be clear and decisive to jussaw the motorman when the car struck the tify a withdrawal of the case from the conchild, at which time his head was turned to sideration of the jury. McMahon v. N. C. R. the right, and he had "one hand on one thing R. Co., 39 Md. 438; Consolidated Railway and one hand on another," but did not see Co. v. Rifcowitz, 89 Md. 338, 43 Atl. 762; B. him winding down, and also stated that the & O. R. R. Co. v. State, 36 Md. 366; Cumchild the instant she started from the pave-berland Valley R. R. Co. v. Maugans, 61 Md. ment began to scream.

Mrs. J. R. Miller, another witness on the part of the plaintiff, stated that she was on the northeast corner of St. Paul and TwentyThird streets, but did not see either the child or the accident. She wanted to board the car, and signaled the conductor to stop, but his attention seemed to be turned toward the college, and he did not appear to see her, and that the car was going very rapidly.

60, 48 Am. Rep. 88.

As to the defendant's second prayer, we think likewise that it was properly refused. In spite of the negligence of the plaintiff or of the parents of the plaintiff lawfully imputable to her, she was still entitled to recover unless the jury should find that, after the motorman saw or could have seen her peril, he could not, by the exercise of ordinary care, have avoided the accident. So far On behalf of the defendant, Hoffman, the as her conduct was concerned, she could only motorman, testified: "Just as I was crossing be held to such a degree of care as might be the corner, I noticed the child standing on expected from one of her age and intellithe southeast corner of St. Paul and Twentygence. According to the testimony, the deThird streets, and, as my car got near, the fendant was 100 feet away when he could front end very near the middle of the street, have seen the infant on the street corner, this child made a full dash, and ran across and, though the principal witness could not the street and ran against the front side of fix the distance that the car had proceeded the car, and it knocked her down." He fur- from this 100-foot point, when the plaintiff ther said that the car was drifting down- assumed a position of peril by starting to grade, without power, at a speed of about four miles an hour; that the rails were slip- ment made we think it might well have cross the street, yet under the general statepery from the damp and misty weather, and that he applied the brakes and used sand and been left to the jury to say if, in the exercise of ordinary care and caution, the motorman made every effort to stop the car as soon as he saw the child start to cross, and that he should not have brought his car, to such a succeeded in stopping the car in about a degree of locomotion as would have enabled length or a length and a half; that he sound-him to stop the same after seeing the peril ed the gong coming down St. Paul street before he got to the corner.

Matthews, the conductor, corroborated the motorman as to the speed of the car and the sounding of the gong.

David G. Murray, another witness on behalf of the defendant, who saw the accident. testified that, when the child started to cross the street from the southeast corner, the car was about midway of Twenty-Third street, going at a moderate speed, and that it seemed to him that the child ran into the car, rather than the car running into the child. Mrs. Geneva S. Conrad testified that the car was going at a moderate speed, evidently slowing down for the crossing.

Nelson Lloyd also saw the accident, and testified that the car was going at a moderate speed; that the child started to cross the street when the car was half a length from her; and that the motorman seemed to do all he could to stop the car, but that the child ran right in front of it.

of the plaintiff, it being his duty under all
circumstances to have his car under better
control at a street corner, where pedestrians
usually cross, than in the middle of the
block. The evidence on the part of the
plaintiff failed to locate the relative positions
of the car and the child at the time the lat-
ter started to cross the street, but by sev-
eral witnesses the defendant proved that the
car
was about midway of Twenty-Third
street when the child started to run across
St. Paul street. The point of collision was
about 21 feet from the curb near which the
child had been standing, and about 20 feet
from the point where the motorman first saw
the child. In an adult or a youth of maturer
years an attempt to cross under such condi-
tions would have presented a different ques-
tion for the consideration of the court. But
"ordinary care" is a relative: term. The
same standard is not expected of an infant
as of a mature man. What would be re-
garded as careless and blameworthy in the

In consideration of the first prayer of the one would not be necessarily so held in the defendant, we must assume that the plain-case of the other. Each case must depend