er of eminent domain, such as a railroad | plaintiffs, and that they did not see how it company, and can make me sell the property, was possible for them ever to reach an underI am not as foolish as that, and I will talk standing with Mr. Willis in regard to the to you about my property." That plaintiffs property. That afterwards plaintiffs saw Mr. told him that their client had "the right of Willis again, and told him that they would eminent domain," and that he said then he like very much to reach an understanding would talk to them, and told them that his with him in regard to his property, “and deproperty contained about 600 acres. He did sired to negotiate further." That they asked not know the correct area. That he esti-him to give them another price, and he remated that he had about 5,000 feet on Back fused to do it saying: "You are seeking to buy. river, and about 1,000 feet on Eastern avenue, I am not seeking to sell. It is your place and about 500 acres of inland property. That to make an offer." That plaintiffs reported he estimated his front on the river to be to the commission on the 15th of June, and worth about $1 a foot, and his front on East- tried to get from them authority to make ern avenue at $2 a foot, and the 500 acres at Mr. Willis an offer, but they thought it was $200 an acre, and said that he would take entirely useless, as their ideas and Mr. Willis' $250,000 for the property. That plaintiff ask- were so far apart that they did not see how ed him if he could get a plat of his property it was possible to reach an understanding for them, so that they "could get down to with him. That this was the end of plaincorrect dealing with him on his property," tiffs' negotiations with Mr. Willis. as it was not satisfactory to deal on roughly estimated acreage or frontage, and he said Bouldin had made surveys at different times of portions of the property, and that he would see him. That plaintiffs made a written report of this interview with Mr. Willis to the commission on the 22d of May. That on the 24th of May they went to see Mr. Willis again to see if he had gotten a plat of the property, and he said that Bouldin was to proceed at once to prepare a plat of his property, and that, as soon as he got hold of it, he would let them have it. That they then talked to him about the value of property in that section, quoting sales at different places, and told him he should name a different price for his property, but he still insisted that it was worth $250,000, "and that was his price for it." That plaintiffs reported to the commission that same day, and they told them to continue negotiations with him. That on the 25th of May they reported to the commission the result of negotiations on the other properties involved, and were then told by Gen. Leary that they thought they could assist the plaintiffs in their negotiations with Mr. Willis, and that they thought it was desirable for them to "see him, and show their hand, and explain the purpose for which the property was wanted. That the fact they would see him would not interfere with us, but would aid us.

That this was a large city improvement, and Mr. Willis was a prominent city official, closely affiliated with the administration, and the fact of their seeing him they thought would tend to aid in the purchase of the property." That he requested plaintiffs to see Mr. Willis and arrange for him to meet the commission at the city solicitor's office the next afternoon. That the plaintiffs called on Mr. Willis, and told him that their principals desired to see him in regard to the property, and to meet him at the city solicitor's office Saturday afternoon. That they did meet, and that, after the meeting, plainiffs were informed by the commission that the statement Mr. Willis made to them was

Mr. Willis, who was called as a witness by plaintiffs, states: That the plaintiffs came to see him several times at his office and once at the property. That they asked him how much land he had, and he told them about 500 acres, and that, if they represented somebody who had the right to take the property, he would take $250,000 for it. That when he met the members of the sewerage commission at the city solicitor's office at the time mentioned by James C. Martien, he told those gentlemen the same thing he had told the plaintiffs. That the matter was not taken up again for sometime afterwards, and until he learned that they were about to proceed with condemnation proceedings in Baltimore county. That he was told by people in Baltimore county that they had been employed to go ahead, and that he then addressed a letter to Gen. Leary, having first seen Mr. Hendrick, "and told him that I realized that the city had a right to take it. That it was by the grace of the state I owned it, and by its grace it could be taken away from me, and that the only thing we could dispute about would be the price. I did not dispute the right of the city to take it. The only thing about which we could honestly differ in connection with it would be the price. I proposed to settle it by a gentlemen's agreement rather than to trust to the condemnation juries of Baltimore county. He seemed to think well of that, but said he would have to submit it to his commission, which was done. The commission approved of it, and an agreement was prepared to submit it to arbitration, the agreement was signed, the arbitrators were appointed, the commission met and decided the case. I remember Gen. Leary saying he wauted the paper drawn so there could be no delays in the matter and wanted it final. If they had said $10 to me, I would have been bound to have taken it. I did not get as much as I thought I ought to have gotten, and do not think so now; but I am man enough to live up to a gentlemen's agree

It further appears from the evidence pro- | Md. 70, 56 Am. Dec. 706, the court said: "We duced by plaintiffs that the agreement to understand the rule to be this: That the submit to arbitration was executed on the mere fact of the agent having introduced the 7th of February, 1907, and that the price purchaser to the seller or disclosed names by fixed for the Willis property by the arbitra- which they came together to treat will not tion was $200,000. The only evidence offered entitle him to compensation," unless it apby the defendant was the deed for the prop- pears that such introduction or disclosure erty from Mr. Willis to the city. was the foundation on which the negotiation was begun and conducted, and the sale made. And in the very recent case of Walker v. Baldwin & Frick, 106 Md. 634, 68 Atl. 31, this court said: "All the cases agree that the disclosure of the purchaser's name and the putting of him in communication with the defendant by the plaintiff must not only be the foundation upon which the negotiations were begun, but upon which it was conducted and the sale ultimately made.

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The broker must be shown to be the procuring cause of the sale. The intervention of the plaintiff in beginning the negotiations and their subsequent culmination in a sale will not suffice unless these negotiations were the ultimate cause of the sale." In other words, to entitle a broker to recover commissions for the sale or purchase of property, he must not only show his efforts or negotiations to accomplish the sale or purchase, but he must

plished as the result of such efforts or negotiations. As the plaintiffs in this case failed to show that the property was acquired by the city as a result of their efforts and negotiations, there was no error in the instruction of the court to the effect that un

By the terms of the written contract entered into by tue plaintiffs and the sewerage commission in behalf of the city, the plaintiffs undertook to negotiate the purchase by the city of the property desired for the use of the commission, for which services they were to receive not more than 14 per cent. of the aggregate amount of the purchases. In other words, the plaintiffs were employed as real estate brokers by the commission, representing the city, to negotiate the purchase of the property needed by the commission, and were to receive as compensation for such services not more than 14 per cent. of the entire amount of the purchases so made. Now, in order to recover under this contract, which is clear and definite, it was necessary for the plaintiffs to show that the city, through their efforts and negotiations, in pursuance of the terms of the contract, had become the purchasers of certain prop-show that the sale or purchase was accomerty for the use of the commission. The evidence in the case, which we have set out at length, and all of which was produced by the plaintiffs, shows conclusively that all negotiations and dealings between the plaintiffs and Mr. Willis ceased before the 15th of June, 1906, and that the efforts of the plain-der the pleadings and evidence the plaintiffs tiffs to negotiate the purchase of his property by the city had utterly failed; that both the plaintiffs and the sewerage commission had abandoned all efforts to secure, and all hope of ever reaching, an agreement with Mr. Willis in regard to the purchase of the property, and that it was not until a long time thereafter, and until after Mr. Willis had heard that condemnation proceedings were about to be instituted for the purpose of condemning his property, that he went to the commission himself, and offered to submit the matter to arbitration rather than undergo a condemnation proceeding. Under such circumstances, the acquisition of the property by the city, whether it be regarded as a purchase within the meaning of the terms of the contract or not, was not in any sense the result of the negotiations of the plaintiffs. The right of the plaintiffs to compensation was dependent upon the result of their negotiations. If they failed, and by reason thereof the city was required to resort to other means of acquiring the property, upon what possible grounds can the plaintiffs expect to recover? They did not render the service, viz., "negotiate the purchase," for which the city agreed to compensate them. Their effort to do so may be commendable, but their failure defeats their right to recover.

were not entitled to recover commissions on the amount paid for the Willis lot. Many other cases in this state might be cited, including the case of Blake v. Stump, 73 Md. 160, 20 Atl. 788, 10 L. R. A. 103, referred to by counsel for appellant, in support of the rule we have stated, but they are all so entirely in accord with the early case of Keener v. Harrod, supra, and the late case of Walker v. Baldwin, supra, from which we have quoted, that we deem it unnecessary to make further reference to authorities. Nor is it necessary to discuss the cases referred to by the appellant further than to say that we do not understand them as opposing the view we have expressed. There is no doubt as to the meaning of the term "negotiate" in the contract in this case. If we accept the definition in Palmer v. Ferry, 72 Mass. 420, cited by appellant, viz., that "To negotiate means to conclude by bargain, treaty or agreement," and apply it to the contract in this case, the plaintiffs contracted "to conclude by bargain, treaty, or agreement" the purchase of the property, and it is their failure to do so in this case that defeats their right to recover. The evidence objected to and excluded by the court in the first exception was evidence to show the negotiations of the plaintiffs in regard to property other than that purchased by the city. The

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1403-1407; Dec. Dig. § 348.*] 2. CARRIERS (§ 331*)-STREET RAILROADS-INJURIES TO PASSENGERS-DANGEROUS POSI-SCHMUCKER, BURKE, WORTHINGTON, TIONS-PERSON ON PLATFORM. and THOMAS, JJ.

3. CARRIERS (§ 323*)-INJURIES TO PASSEN-It was cold, and he went into a drug store

The grounds of the defense were that he was going inside the car," and that he knew guilty of contributory negligence in standing | nothing about the runaway car until it struck on the platform of the car, and that he as- the car he was in. sumed the risks to which his position exposed him. The trial resulted in a verdict and judgment in favor of the plaintiff for $10,000, from which judgment this appeal was taken.

Plaintiff's witness Herford says that the car plaintiff was on was standing on Madison avenue, in front of Wegner's saloon, the fourth door from the northeast corner of Madison and North avenues, and that he The record contains three exceptions to saw some one get on the car ahead of the the rulings of the court on the evidence, and plaintiff who went inside the car, and was one exception to the granting of the plain- about to take his seat when the accident tiff's two prayers, the rejection of the de- happened; that the conductor was in the fendant's first, second, third, fifth, sixth, sev- front part of the car, and had something in enth, ninth, tenth, and eleventh prayers, and his hand, and witness thought he was writthe overruling of defendant's special excep-ing; that he saw the runaway car pass the tion to plaintiff's prayers. The only excep-northwest corner, and saw plaintiff on the tions, however, relied on and pressed in this platform of the car that was struck; that he court, are the exceptions to the ruling of the saw a man who came out of Wegner's saloon, court on the evidence, and to the granting get on after plaintiff, and that after witness of plaintiff's first, and the rejection of de- hollowed he jumped off; that plaintiff could fendant's sixth, ninth, tenth, and eleventh have gotten inside the car and taken a seat; prayers. that Rosenheim got on the car a few minutes after plaintiff; that plaintiff was standing on the left-hand side of the platform of the car facing the motorman; that witness hol-. lowed loud, and Rosenheim, the man who got on the car after the plaintiff, jumped off, but he could not say positively how long Rosenheim was on the car before he jumped off; that he imagines that it was not more than a couple of minutes "if it was that much"; that it was a very short time.

Plaintiff testified: That "he ran to get on the car and got on, but, before he could throw his cigar away or get inside, some one jumped on the rear end of the car, and hollowed and pulled the bell, and before he knew it there was an awful crash. The car was still when he got on. His position was on the back platform of the car facing the motorman, looking inside the car, about to walk in. He did not have time to throw his cigar away or get inside the car before some one Plaintiff's witness Zimmerman stated that jumped on and hollowed, and at the same he came out of Wegner's saloon and saw a time rang the bell, and before he knew it car coming down Madison avenue which stopthere was a crash." And on cross-examina-ped, and that he stepped on the car, and at the tion he said he ran back of the car and got on because it was the last car that night going down, and that he still had the cigar with him; that he did not have time to take any position, and had just gotten on the car, was standing facing-"I was looking inside the car"-that he was standing on the platform looking inside the car; that he guessed he was smoking; that he could not tell how many people were in the car; that he saw the conductor, who was standing up in the front part of the car; that no one else was there that he knew of; that the conductor was not on the back platform or at the back door; that he did not have time to see how many people were in the car, which was not crowded, and that "he guessed there was plenty of room inside"; that he had been around cars a good deal in Baltimore for 10 years, but never knew of any notice or sign in the cars warning people against standing on the platform because it was dangerous, and that "those so doing assumed the risk," but that he had seen signs prohibiting smoking inside the car, and that he knew how to read; that he did not know whether it was Rosenheim who hollowed, but that somebody hollowed, and at the same time jumped on and pulled the bell; that "everything was all confusion at the time,” and that he, plain

same time plaintiff got on the car; that he, witness, went inside the car, and, as he was about to take a seat on the right side, he looked around, and saw plaintiff standing on the left-hand side of the rear platform, holding onto the rail; that the conductor was in the front part of the car, writing something in a little book, but that there was no one else in the car, and that about half a minute later he heard some one jump up on the car and ring the bell, and he saw him jump off again, and that then the crash came, and witness found himself in the front part of the car where the conductor was; that the car that he was on was at a standstill when he got on it, and, after it was struck, it went to about the middle of the square; that there was plenty of room inside the car; and that it was probably half a minute after the plaintiff got on the car before Rosenheim got on the car and pulled the bell, and that in the meantime plaintiff was standing on the platform holding to the rails, but that he "didn't know whether he was smoking or not."

Plaintiff's witness Brenner stated that he and Rosenheim came out of Wegner's saloon; that Rosenheim was waiting to go downtown, and that he was going east on North avenue; that they saw the car coming, and Rosen

and he presumed he got on the car, and wit- jury resulted from the negligence of the deness had gotten "diagonally across" Madison fendant, or the accident could have been avenue when he heard a shout, and, looking avoided by the exercise of ordinary care by back, saw plaintiff standing on the platform, the plaintiff, were confined to the evidence and Rosenheim pulling the bell rope, and be- produced by the defendant. As was said in fore he could realize what happened he saw the case of Lewis v. B. & O. R. R. Co., 38 another Madison avenue car coming, and Md. 588, 17 Am. Rep. 521: "The question in there was a crash which carried both cars as this and in all cases of the like kind is whethfar as the middle of the block; that the er the injury complained of was caused encrash came immediately after pulling the tirely by the negligence or improper conduct bell, and the car was either still or had very of the defendant, or whether the plaintiff so little headway; that after the accident the far contributed to the same by his own negli. platforms of the two cars were apparently gence or want of ordinary care and prudence smashed, and there was a tangle of the iron that, but for such negligence or want of care grating and the brake, "and plaintiff was and prudence, the injury would not have hapdown among them." pened. In the first case, the plaintiff would be entitled to recover-in the latter he would not, unless the defendant, by the exercise of care and prudence, might have avoided the consequences of the plaintiff's negligence." While an injury may be sustained under such circumstances as, when shown, give rise to the presumption of negligence on the part of the defendant, the testimony adduced to show these circumstances may also disclose such evidence as will justify the court in saying, or the jury in finding, that the plaintiff was guilty of such contributory negligence as defeats his right of recovery. Without meaning to say as a matter of law that the testimony produced by the plaintiff shows that he was

The plaintiff produced other witnesses whose testimony was to about the same effect as the evidence above stated, from which the jury could have found that at the time of the accident the car on which plaintiff was injured was either standing still or had just started, and that plaintiff was standing on the rear platform of the car; that there were very few people in the car; that the plaintiff had an opportunity to go inside the car; and that, if he had done so, instead of remaining on the rear platform, he would not have received the injuries for which he

now seeks to recover.

found that the plaintiff had the opportunity tain evidence from which the jury could have to go inside the car, and that, instead of doing so, he remained on the platform, and that under the circumstances disclosed by this evidence he was negligent, and that but for such negligence on his part he would not have been injured. Notwithstanding the ju

Defendant proved by its witness Glenn that he was conductor on one of the defend-guilty of contributory negligence, it does conant's cars, and saw the accident in which the plaintiff was injured; that he had been at work on the street cars for 14 or 15 years previous to the accident; that he took the car plaintiff was on from the place of the accident back to the barn; that that car and all other cars of the defendant had posted on them a sign forbidding people to ride on the steps or rear platform of the car, and stating that those who did so did it at their own risk; that these notices had on them, in big red letters at the top, the word "Warning."

Plaintiff's first prayer is as follows: "If the jury believed that the plaintiff was a passenger on one of the defendant's cars, and whilst being carried therein was injured by a collision between that and another of the defendant's cars while moving on the same track, then the presumption is that the injury resulted from the negligence of the defendant, and the plaintiff is entitled to recover, unless the defendant shows that the said injury did not result from its negligence, or that the accident could have been avoided by the exercise of ordinary care on the part of the plaintiff." By this instruction the jury were told that, if they found the facts stated in the prayer, the plaintiff was entitled to recover, unless the defendant showed either that the injury did not result from its negligence, or that the accident could have been avoided by the exercise of ordinary care on the part of the plaintiff. In other words,

may have so found, yet under the instructions contained in the plaintiff's first prayer they were required to find for the plaintiff, unless the defendant showed that the injury did not result from its negligence, or that it could have been avoided by the exercise of ordinary care on the part of the plaintiff. In the case of Phil. & W. R. Co. v. Hand, 101 Md. 238, 61 Atl. 285, this court, in condemning a prayer which told the jury that they "were not entitled to presume that the plaintiff was guilty of negligence, but that fact, if relied upon by the defendant, must be proved by the defendant by preponderating testimony," said: "Contributory negligence will defeat a plaintiff's action. It can, therefore, make no possible difference whether that negligence is proved by the plaintiff or by the defendant. It is its existence, and not the party by whom its existence is proved, that is material. It is the thing itself that defeats the action, and not the mere accident that it happens to be proved by the one or the other of the opposite parties. It is just as complete a bar to the action when its presence is revealed in the evidence introduced by the plaintiff as it is when disclosed in the