Cooke v. Baltimore Traction Co.

McSherry, J., delivered the opinion of the Court. This is another of the numerous negligence cases which have come before us from Baltimore City since the rapid transit system was introduced there. It is a case growing out of the alleged carelessness of the employees of a street railway company, whereby the vehicle of the plaintiff, which was rightfully on a public street of Baltimore, was run into and demolished by a cable car belonging to and operated by the defendant company. The legal principles applicable to and governing such a case have been frequently and explicitly announced by this tribunal; but repeated efforts to invoke and rely on doctrines which have ⁵⁵⁴ exclusive application to a totally different class of decisions render it necessary for us to briefly reiterate what was supposed to be thoroughly and definitely settled.

There is, to begin with, no possible analogy between a case growing out of an injury caused by a street railway car to a person rightfully upon the public thoroughfare, and a case involving an injury inflicted by a steam railroad train on á trespasser wrongfully upon the latter company’s right of way. And this is so, because the citizen has the sanie privilege to use the street for travel that the street railway company has for propelling its cars thereon; and the railway - company has, apart from its franchise to lay its. rails, no right to the use of the street as a highway superior in any degree to that possessed by the humblest individual. The franchise to lay its rails upon the bed of a public street gives to the company no right to the exclusive use of that street, and in no respect exempts it from an imperative obligation to exercise due and proper care to avoid injuring persons who have an equal right to use the same thoroughfare. It is bound to take notice of, recognize and respect the rights of every pedestrian or other traveler, and if by adopting a motive power which has increased the speed of its cars, it has thereby increased, as common observation demonstrates, the risks and hazards of accidents to others, it must, as á reciprocal duty, enlarge to a commensurate extent the degree. of vigilance and care necessary to avoid injuries which its own appliances have made more imminent.

This is so self-evident and manifest that no argument is needed to support it. Negligence is essentially relative and comparative, not absolute. It is not even an object of simple apprehension apart from the circumstances out of which it grows. As' these circumstances necessarily vary in their relations to each other, under different surroundings they inevitably change their original signification, and import.

Hence it is ■intrinsically true that those things which would not under one condition, constitute negligence, would, on the other hand, under a different, though not necessarily an opposite ⁵⁵⁵ condition, most unequivocally indicate its existence. Thus an act which would have been neutral or indifferent tyhen street cars were drawn by horses at a comparatively low rate of speed, and could consequently be readily brought tó a stop as occasion required, would become culpably negligent since the change of motive power and the great acceleration of speed incident thereto under the rapid transit system. The existence of negligence is therefore to be sought for in the facts and surroundings of each particular case. But there will generally be found standing prominently out in many instances of this character a disregard of the safety of others, a want of caution to avoid injury where the duty to use that caution is incumbent, and a reckless or heedless use of dangerous agencies in localities where the peril from their use is obvious.

When these conditions or any of them are presented, and an injury is inflicted in consequence upon another, a case of actionable negligence has been made out, provided the plaintiff is himself free from contributing blame. Now, the case before us, as presented by the plaintiff’s evidence, discloses the following facts : The defendant operates its street cars by a cable.' Part of its route extends over portions of Fayette and Gilmor streets. At the intersection of these two streets the double tracks of the company curve sharply around the northeast corner. The right-hand track on Fayette street, as you face the west, is used by cars going west on that street and north on Gilmor street, and the left-hand track is used by cars going south on Gilmor and east on Fayette streets.

The plaintiff, who is a physician, was returning in his buggy, about a quarter before eleven on the night of thé accident, from visiting a patient, who lived on Gilmor street, south of Fayette. Driving to the northward on Gilmor street, he kept, as he ought to have done, on the right or eastern side. Before reaching Fayette street, which he was compelled to cross in order that he might continue on up Gilmor street, he saw a car coming south on Gilmor, north of Fayette street, towards ⁵⁵⁶ him. When it reached the point where the curve bending into Fayette street begins, it stopped.

After he had passed the. building line of Fayette street he looked east, down Fayette street, to see if a car was approaching on the right-hand track up that street towards Gilmor street, and he neither saw nor heard one. The boy who was with him leaned out of the buggy and also looked with a like result. There were street lights burning on the corners of these streets. The plaintiff was driving at a speed of four or five miles an hour.

From the time he emerged from behind the houses on Gilmor street and passed the