Baltimore Transit Co. v. Revere Copper & Brass, Inc.

Grason, J., delivered the opinion of the Court. This case is an appeal from a judgment entered below in favor of the plaintiff against the defendant for damages to an automobile, caused by a collision between it and two cars of the defendant. The appellant is The Baltimore Transit Company (herein called Company) and the appellee is the Revere Copper & Brass, Inc. (herein called Revere). • • ■ The accident happened at about 5:45 P.M. on July 8, .1948, where Liberty Street crosses the tracks of the Company, in Baltimore City. It was daylight, clear, and .the streets were dry.

The automobile was a 1948 Plymouth four-door special deluxe sedan, in perfect condition, and was operated at the time by Harry G. Harper, ■the agent of Revere. . The circumstances surrounding this accident may be stated as follows: Fayette Street runs east and west. Liberty Street, generally north and south* intersects Park Avenue at an acute angle between Fayette and Baltimore Streets. Park Avenue is the first street west of Liberty Street.

It runs generally north and south. The Company has two sets of railway tracks on Park Avenue curves into Liberty southerly at this intersection. Cars are operated north bound on the east tracks and south bound on the west tracks. At Fayette Street and Park Avenue and Liberty Street Traffic is controlled by a single traffic light, and when this. light is green at Park Avenue it is green at Liberty Street.

On-.the evening of this accident there was .a line of cars at Fayette and Liberty, waiting for the green light to proceed south. When the green light was given this traffic proceeded south on Liberty Street. The Revere car, operated by Harper, was ' second in line and a ⁶¹⁵ car followed Harper, driven by Robert Simonaire, a witness produced by Revere. He was not going to cross the tracks but turned left for the purpose of going to Hopkins Place and was about ten feet from the Revere car and saw the red light in the rear of that car come on when Harper applied his brakes.

He then saw the “street car coming up”. “* * * just as he was getting to the street car tracks I seen his brakes go on, his rear lights, and then I threw mine on and at that time then I saw the street car coming up * * * he was getting pretty close to the street car tracks. * * * it was just a matter of seconds before the street car hit him.” “Q. At that time you say he was practically in the north bound car track? A. That is right.” At that time the witness said the street car was “about 20 or 30 feet” away from the automobile. “When the north bound street car hit him it sort of pushed him on the side a little. I happened to look up and seen this other car coming down and it looked (like) the motorman was frozen at the wheel; he just kept on coming; he just hit right into him.” “When I saw him (the south bound car operator) he was at least 40 feet.” This was after the Revere car “had been hit”. He would not say the south bound car “was going fast”.

He said on cross examination: “It (the north bound car) just barely hit it (the automobile) and it sort of swerved him around just a little, but the other car coming down, he pushed it all the way around * * *.” Harry G. Harper, who was driving the Revere automobile, described the accident as follows: “As I approached the street car track, approximately thirty feet away from the tracks at the time, I looked to my left and I saw a street car just leaving Baltimore Street coming north. * * * the front end of the car was on this side (north side) of Baltimore Street. * * * it was going slow.” He did not “entirely stop” the automobile at that time “because seemingly there was plénty of time to cross the tracks in safety. * * * I then looked to my right to see if there was any traffic ⁶¹⁶ coming from the right of me. * * * I saw a street car at Fayette Street stopped.” it was “stopped on the north side of Fayette Street either loading or discharging passengers, * * *. I looked back from my right to the left and I saw the — well, practically on the street car tracks at that time.” “I saw this north bound street car coming at me; he was approximately 25 or 30 feet from me at the time.” He could not say the speed the street car was traveling at the time, “but he was going much faster then he was at the time I had first seen him. * * * I immediately started to jab on -the brakes. I saw if I did so I would stop in the middle of the tracks, and from there on I accelerated the speed of the car trying to clear the tracks.” “The north bound street car hit my automobile approximately (at) the left front fender and the left front door.” “He (the operator of the street car) was successful in stopping at approximately the time he struck me. He didn’t strike me very hard.” Harper “turned off the ignition key and tried to get out of the left side of the car.” It was jammed.

He then “slid over on the right side and took hold of the right door handle and tried to get out that side. As soon as I grabbed hold the door handle the south bound street car came down and struck the right hand side óf it and it slewed the car around.” “It struck the automobile approximately (at) the right front fender, tossing it around and jamming it in between the two street cars.” “Q. How long do you suppose you had been sitting there after the first impact before, the south bound street car struck you? A. I really can’t say exactly, sir, but it was some little time. It wasn’t a matter of five or ten minutes or anything like that.” He said as he started to cross the north bound car tracks his speed was “approximately 20 miles an hour”.

He does not know what became of the car in front of him. When he looked to his left when he was about 25 or 30 feet from the tracks, the north bound street car was “approximately 200 feet” away. He then looked to his right and saw the south bound street car at Fayette Street. As he turned his ⁶¹⁷ head again to the right he was “approximately on the car track; very close to being on them.” It was then he saw the oncoming street car 25 or 30 feet away.

The witness Pfannensteel ran a parking lot on the east side of Liberty Street between Fayette and Baltimore Streets. He was standing in the driveway of the lot at the time of the accident and he describes it as follows: “Well, the way I seen it, this man driving the automobile was coming south on Liberty Street and and it appeared to me as he started to turn he slowed down, and just as he was crossing the tracks the street car coming south — north, I mean, was making a little bend there and as this man crossed the track this man on the street car, it seemed like he put his foot on the gas, what I think, I think, he was looking to his right to see if any traffic was coming.” “Q. Now, did you see the south bound street car strike the automobile too after it had been struck? A. As I looked south when I seen this man starting across the track, I happened to turn to the right and it seemed to me that the man was just crossing Fayette Street when he was going across the tracks.” He was referring to the operator of the south bound street car. “Q. Well, now, after you saw the north bound motorman put on his speed at the bend and strike the automobile, how far away at that time, if you know, was the south bound street car? A. I imagine around thirty feet.

Q. Was there an interval of time between the collision with the north bound street car and the time it was struck by the south bound car? A. Yes, sir, I imagine a couple of seconds, somewhere around there.” The witness Asch was standing at the northwest corner of Baltimore and Liberty Streets, about a half block from the scene of the accident. He said: “I heard a screech of some kind — I don’t know where it came from — and the car swerved a little bit to the right, and I saw the street car coming up towards me, and as I recall he made absolutely no effort to stop; it just kept coming and it struck this automobile amidships, I would ⁶¹⁸ say, and threw it over a little bit to the side.” Referring to the south bound street car the witness said: “I could see that the south bound street car was coming down making a frantic effort to stop, but it just didn’t and it struck the automobile and he wedged it between the two cars.” He stated the south bound street car was going “faster than 25 miles an hour”. He said he imagined the south bound street car “tried to put on the brakes”.

He couldn’t tell exactly at which point but he did know “either the brake mechanism or the wheels fused and they had an awful time getting it away from there”. “Q. How far away from where the collision occurred was the south bound street car? A. About 35 — 30 feet, something like that.” This was -the evidence that the appellee offered to sustain its case. The operators of both the north and south bound street cars were experienced men and had operated street cars for twenty years. Mr. Burnham, the operator of the north bound street car, stated that he was going across Baltimore Street when he saw the traffic start across Fayette Street. “Just as I got there at that curve this automobile coming north — south bound was — I seen him pick up speed and swing to his right..

As I saw him do that I jammed on my brakes — threw my brakes to the floor, which my brakes locked, threw it in emergency, sand, the bells sounded, emergency bell of the car, and my left front corner of my car collided with the left front driver’s seat door.” The automobile was moving at the time.. “I was about 25 or 30 feet from him practically coming headon.” “Q. Do you know where the south bound street car was at that time? A. I didn’t exactly notice until the impact and the next thing I noticed him coming down; the two impacts simultaneously occurred, about a second or so between the two contacts.” He said when , his car struck the automobile he pushed it “maybe two or three feet”. He said at Fairmount Avenue, which intersects Park Avenue from the west but does not cross it, and which is a little north of the crossing, there is ⁶¹⁹ a curve and that he had increased his speed a little bit and that after he was across Baltimore Street he increased his speed a little bit. He said he was watching the traffic ahead of him.

The witness Schwind operated the south bound street car. He. saw the automobile “on Liberty Street almost even with my car which was on Park Avenue”. “I noticed the number 32 street car north bound and this automobile south bound. I didn’t know exactly what would happen; I slowed my speed and when the 32 car collided with the automobile he slewed him along a little ways north bound and before I could get my car stopped I had struck the automobile also.” “Q. They came together how far in front of you? A. Well, another 25 or 30 feet.

I don’t know exactly the distance. It was close.” The witness stated that when the automobile was struck by the north bound car it was shoved “north slightly five or six feet. Wouldn’t that stop him— wouldn’t that turn him back up to me? I am south bound.” There was other testimony in the case tending to show that the north bound street car put on its brakes and did everything to stop the car, but it will not be necessary to refer to this testimony.

At the conclusion of the appellee’s case the appellant offered prayers A and B. A was a general demurrer to the evidence — B, that appellee was guilty of contributory negligence as a matter of law. Each of these prayers were at that time refused and reoffered at the end of the whole case and decision thereon was reserved. Appellant filed a motion for judgment N. O. V. or a new trial, which was overruled. It has been often said by this court that: “Where it is manifest to the court upon the plaintiff’s own showing and the uncontradicted evidence in the case that there is no rational ground upon which a verdict can be based for the plaintiff, it becomes the duty of the court to direct a verdict for the defendant.” (see cases there cited.) Baltimore Transit Co. v. Young, 189 Md. 428, 436 , 56 A. 2d 140, 144 . ⁶²⁰ It was held that where one deliberately went forward in the face of an imminent and apparent danger because she thought she could get across the south bound track before the car running on that track reached the point at which she was crossing was “sheer recklessness”.

McNab v. United Rys. & Electric Co., 94 Md. 719 , 726 51 A. 421 . And this is the law in the city, in the suburbs, or open country. We are not unmindful of the rule that street cars and automobiles have reciprocal