Colgate & Co. v. United Railways & Electric Co.

Urner, J., delivered the opinion of the Court. The motor-truck of the appellant was struck by an electric railway car of the appellee at the intersection of Gough and Bond Streets in the City of Baltimore. To recover for the damage to the truck this suit was brought, and from a judgment on a verdict for the railway company, directed to be rendered on the ground of contributory negligence on the part of the driver, the owner of the truck has appealed. An exception to that instruction raises the only question presented by the record.

The street ear was proceeding westwardly on Gough Street, and the truck was being driven southwardly on Bond Street, toward the intersection where the collision occurred. The driver of the truck thus described the accident: “I was going south on Bond Street; within about thirty or thirty-five feet from the intersection I glanced to my left; I saw that the street was clear and then I proceeded a little further and I looked to my right for approaching traffic for the right of way. I saw the coast was clear, so I stepped on the gas and started across. When I got to about seven feet from the west-bound track I seen this car * * *.

As I saw this car it was just a little east of the east side building line. * * * He was coming at a fast rate of speed; I saw that it was no use of me trying to stop, so I just stepped on the gas and tried to beat him across, and with that he struck me about the middle of the track and throwed me out of the truck and dragged the truck, I should say down to Dallas Street, anyway about seventy-five feet.” On cross-examination he said that he was driving at the rate of approximately fifteen miles an hour as he approached the crossing, ⁴⁷⁴ and the truck could be stopped within a distance of seven or eight feet when operated at that speed; that he had not reached the northern building line of Gough Street when he first looked to- his left for traffic coming from that direction; and that the view along Gough Street to the east is unobstructed to one reaching the intersection from the north. He stated that he was driving along the west side of Bond Street and the front of the truck had passed beyond the curb line of Gough Street when he looked to his left the second time. A passenger on the street car, testifying for the plaintiff, said that as the car, running at a speed of twenty-five or thirty miles an hour, approached Bond Street, the motorman applied the power control and rang the bell, but the way appearing clear, he reapplied the power at once and proceeded over the crossing. When this witness first saw the truck, it was within three to five feet from the track and the front of the car was twelve or fifteen feet from the point of collision.

The effort then made by the motorman to check the speed of the car, before the impact, was unavailing. There was proof of an ordinance of the Mayor asid City Council of Baltimore providing that street cars shall not be operated at a higher speed than fifteen miles an hour when crossing streets in congested parts of the city. The case was withdrawn from the jury at the close of the testimony which the plaintiff produced. Evidence as to the speed of the street car supported the theory of primary negligence, but as the uncontradicted testimony proved conclusively that negligence of the driver in charge of the plaintiff’s truck directly contributed to the accident, it is our duty to hold that a verdict for the defendant was properly directed on that ground.

The failure of the driver to look eastwardly on Gough Street, after reaching a point where he had a clear view in that direction, and before driving the truck into dangerous proximity to the railway track, was clearly negligent. According to his own narrative, he first looked to the left when he was thirty or thirty-five feet from the intersection, where he was not yet abreast of the north building line of Gough Street, and did not look again to his left until ⁴⁷⁵ he was so close to the track that his only hope of avoiding a collision was in an effort to cross in front of the approaching car. In passing between the points of the two observations he had ample time and space for an unobstructed view along Gough Street to the east, and if he had availed himself of that opportunity, he would have seen the oncoming car when he was in a position of safety. When he first looked to his left, the part of the street which seemed to be “clear” was restricted by the intervening houses on the northern side, which he had not yet reached, and his second look for westbound traffic was delayed until the collision was beyond his power to avert.

In thus looking too soon and too late to avoid the danger, the truck driver did not exercise the degree of care required by ordinary prudence. The ruling of the trial court to that effect was in accord with decisions of this court in the closely analogous cases of Foos v. United Rys.