Baltimore Consolidated Railway Co. v. Rifcowitz

Schmucker, J., delivered the opinion of the Court. The appellee, Annie Rifcowitz, when crossing Pratt street, at or near the corner of Little Gough street, in Baltimore ³³⁹ City, at about half-past six o’clock in the morning, in April, 1898, was struck and injured by an electric car of the appellant, which was going west on Pratt street. She brought suit jointly with her husband against the appellant for damages for the injuiry she had suffered and obtained a judgment in her favor, from which this appeal was taken. It appears from the record that there is a double track on Pratt street, which occupies almost the entire bed of the street at the point where the accident occurred, the distance from the north rail to the curb of the sidewalk being only six feet.

It also appears that there is a straight view easterly along Pratt street, from the corner of Little Gough street, for about a thousand feet, so that a person looking east from that point, ought, under ordinary circumstances, to see an approaching car in ample time to avoid it. On the morning of the accident the appellee had made some purchases at a store on the north side of Little Gough street, near Pratt street, and was returning, with a pitcher of milk in one hand and a package of bread in the other, to her home, which is on the south side of Pratt street, when the car struck her. She testified that when about to cross the street she looked all around and did not see any car, and when she started to cross she was struck in the side by the car, and became unconscious, also that the accident happened at the corner of the two streets. She and four other witnesses, who saw the accident from its immediate vicinity, one of them from the inside of the car, testified that they heard no gong or bell ring, and the motorman, although testifying that, as soon as he saw the appellee step from the curbing to the street, he tried in every way possible to stop the car, does not say that he rang his gong or called out to warn her.

Three witnesses, who were in the car at the time, testify that the motorman did ring his gong. The motorman further testified: “After I crossed Little Gough street, I noticed this woman (the appellee) step from the curbing to the street, * * * the car was then fifteen feet from her, going at the rate of ten or eleven miles ³⁴⁰ an hour, * * the woman was walking very slowly when she stepped off the pavement, and had to go about six feet to reach the track, * * she was paying no attention to the car, * * it required thirty feet to stop the car in the condition in which the track then was. ” All of the witnesses who saw the accident from the street testified that the car was going very fast at the time, and that the accident occurred at the corner of the two streets. At the trial of the case the plaintiff offered but one prayer, which instructed the jury that if they found that the plaintiff did not contribute to the injuries received, but they were caused by the negligence of the defendant, the verdict should be for the plaintiff. The defendant offered two prayers, which asked the Court to instruct the jury as follows : First: “ That the plaintiff testified that she looked for a car upon Pratt street before attempting to cross, and immediately upon stepping upon the track she was struck, and the plaintiff’s evidence also shows that there was nothing to prevent the car being seen; this evidence is not satisfactory and legally sufficient to enable the plaintiff to recover, and the verdict must be for the defendant.” Second: “That if they believe from the evidence that the motorman of the defendant exercised reasonable and ordinary care while running the car which struck the plaintiff, and that he exercised ordinary care to discover the approach of the plaintiff towards the tracks, and that the plaintiff was negligent in her attempt to cross the tracks, with the car running fast and near the place of accident, their verdict must be for the defendant.” The Court granted the plaintiff’s prayer and the defendant’s second prayer, and rejected the defendant’s first prayer in the form in which it was offered, but granted it after having first modified it by adding it to these words, ‘ ‘ unless the jury shall further find that after the motorman saw, or could reasonably have seen, the peril of the plaintiff, he failed to exercise ordinary care to avoid the accident. ” The defend ³⁴¹ ant excepted to the Court’s action in reference to the prayers.

The plaintiff’s prayer, although rather general in its language, rests upon and asserts a well-established legal proposition which was directly applicable to the facts of the case and it was properly