Davidson Transfer & Storage Co. v. Baltimore Transit Co.

Grason, J., delivered the opinion of the Court. Appellant instituted this case against appellee, claiming damages to its tractor-trailer caused by appellee’s street car when these vehicles collided at a street intersection in Baltimore City. It is averred that the operator of .the tractor was entirely free of negligence and the accident was the direct result of the negligence of the appellee’s motorman who was operating the street car. The case was submitted to the trial court without a jury, and at the conclusion of the whole case, judgment was rendered for the defendant (appellee) on the ground of contributory negligence.

It is from this judgment that the present appeal was taken. About half past seven on the morning of March 30, 1943, a tractor with a trailer annexed, belonging to The Davidson Transfer and Storage Company, operated by William Bryan, destined to Curtis Bay, was proceeding south on Bond Street in the City of Baltimore. The tractor was 12 feet long and the trailer was 28 feet long. The trailer was loaded with some empty drums and ten tons of pipe fittings.

Bond Street, in its approach southerly to Monument Street, is a two and one-half per cent up-grade. The tractor was in third gear, which corresponds to second gear of a touring car. On' ²⁶⁵ the level, when in third gear, it has a speed of about twenty miles an hour. That morning the tractor traveling on Bond Street, upgrade, approaching Monument Street to the south, was traveling about ten miles an hour.

As it approached Monument Street there was an automobile facing south, parked at the west curb of Bond Street, about eight feet north of the north curb of Monument Street. Rudy Shaw was the driver of this car. His employer was seated in it and he was standing at the curb, at about the windshield of the automobile, with the right door of the car open, about to get in and drive his employer to his office. He had a perfect view easterly down Monument Street to Broadway.

He saw the tractor approaching and as it was near him he waited for it to pass. He saw the accident and his description of how it happened is about as follows: When he first saw the tractor-trailer it was about fifteen feet north of his employer’s automobile, traveling about eight or ten miles an hour. At that time, the witness stated, the street car was not coming. As the tractor passed him it was to the right of the center of the street.

When it reached a point where its hood projected about six feet into Monument Street he looked over the hood of the tractor and saw the street car coming west, crossing over Bethel Street, traveling about thirty miles an hour. From the center of Bethel Street westerly to the center of Bond Street is 245 feet. “The cab just got across the first rail, the streetcar was in, I say, fifty feet of it. As the truck got center the track, going about center, the street car ran right into the center ox the truck, I will say, about near the center.” On cross-examination the witness gave this version of the accident: “The street car was about, when the cab entered over just about the first rail, going west on Monument the street car was coming over Bethel Street, and the cab was hitting the eastbound rail — When the cab hit the eastbound rail, why, that threw the street car about fifty feet to it, to the trailer. The trailer is just half way across, the trailer gets about even, the center of the trailer gets ²⁶⁶ about even with the eastbound rail, the street car ran right into the side of it, and that knocks the cab cater-cornered up Monument, up the street and knocks the rear end of the trailer down.” It was after the trailer passed, the witness saw the street car fifty feet from the trailer.

Addison Warren testified he was walking west on the north side of Monument Street and when he reached the west curb of Bethel Street he saw a street car. It was making a terrific noise. He turned and looked and by that time the car was beside him; “so, I followed the. general direction of the street car, and that’s when I saw the first unit of the truck and trailer going across.” At that time the front wheels of the tractor were about midway between the two tracks of the westbound rails, and then “I noticed the street car was running at a terrific rate of speed, I didn’t expect it to stop. I was continuing walking, and I did notice during that time the motorman made every effort.

He applied the brakes and put sand under the wheels, but the street car just continued sliding right straight down the street, and by that time the front of the tractor-trailer had gotten across to the other track of the eastbound run.” “The rear trailer wheel was just about center of the westbound run when the actual contact came between the two vehicles.” It “upset the trailer, and then I hurried up and ran across the street behind the street car and went over to the cab to see how the fellow was in the cab, and helped him to get out.” At that time the trailer was turned over on its right side, the rear wheels were on the south rail of the westbound tracks. The witness estimated that the motorman applied sand in order to stop the car 100 feet from Bond Street; that the sand and brakes were applied shortly after the street car passed him at Bethel Street. He did not hear the bell on the street car ring. William Bryan, at the time of the accident, had been working for the appellant for a year and eight months and had been driving tractor and trailer units for ten ²⁶⁷ years.

When he came to the intersection of Monument and Bond Streets he “couldn’t see, didn’t see anything coming or going either way so, as I pulled out in the intersection I looked and saw the street car coming. By that time the front of my tractor was in the car track of the westbound street car, so I continued on across because the street car was up there so far I just say, well, being that far, I will be across before he hit me.” He further stated that the front of the tractor was just about in the westbound tracks when he first saw the street car and it was at that time close to Bethel Street, and when the streetcar struck the trailer the tractor was just about at the building line, meaning the building line on the south side of Monument Street. He stated: “As I was going across Bond Street, I didn’t think the street car would hit me. I got so far out and all of a sudden I heard something go bump, and just as soon at it hit the whole think went over.” The street car struck the trailer about four feet back from the center.

The tractor-trailer was traveling at about ten miles an hour at the time and due to the heavy load the witness stated he could not pick up in speed. On cross-examination he said: “When I got to the intersection it wasn’t nothing coming or going, no automobiles or street car or anything.” When asked: “Where was the front of your tractor when you looked that first time and couldn’t see anything?” he answered: “I was just about at the building line.” “When I first seen the street car I was at the building line but the tractor stood out in front of me about six feet.” Question: “Well, didn’t you look for the street car when you yourself got to the building line?” He answered: “I looked for street cars, other automobiles, anything, when I got to the building line, but I didn’t see anything,” and he saw the street car the first time when the front of the trailer was on the car tracks. “When I seen the street car my tractor wheels was in the street car tracks.” He stated that due to the upgrade and the heavy load he could not increase his speed. He further ²⁶⁸ stated that going ten miles an hour he could stop within two feet. The damage resulting from this accident is not disputed and the testimony relating thereto need not be considered.

From this evidence it appears that the witness Bryan was driving this tractor with the trailer attached, heavily loaded, upgrade, on Bond Street. When he arrived at the building line and had a partial view east on Monument Street, he looked and saw no traffic approaching. The cab in which he was sitting was some five to six feet from the front of the tractor. He proceeded, at ten miles an hour, to cross the intersection, and when the front of the tractor was in the westbound street car tracks he saw the street car for the first time.

It was then near Bethel Street, approximately 245 feet east. It further appears that the street car was being operated, down a 5 per cent, grade, at a high rate of speed and when it was about 100 feet east of Bond Street, in an effort to slow down the speed, the motorman released sand for an approximated distance of 100 feet, and applied the brakes, but, nevertheless, the momentum of the street car was such that it hit the rear end of the trailer. These facts make out a prima facie case of negligence on the part of the motorman in the operation of the street car. There was evidence tending to show that the street car was operated at an excessive rate of speed, which directly contributed to the accident.

To determine whether or not the operator of the tractor was guilty of contributory negligence it was necessary that all the facts and circumstances attending this accident be considered, and it cannot be said, from this evidence, that the operator of the tractor was guilty of such conduct so" distinct, prominent and decisive that ordinary minds would not differ in declaring it to be negligent. The appellant’s evidence, therefore, was legally sufficient to be submitted to a jury, if this case had been tried before a jury. United Rys. & Electric Co. v. Ward, 113 Md. 649 , 77 A. ²⁶⁹ 593; United Rys. & Electric Co. v. Watkins, 102 Md. 264, 267 , 62 A. 234 ; Schell v. United Rys. & Elec. Co., 144 Md. 527 , 125 A. 158 ; Taxicab Co. v. Ottenritter, 151 Md. 525 , 135 A. 587 ; Jersey Ice Cream Co. v. Bach, 161 Md. 285 , 157 A. 277 ; United Rys. & E. Co. v. Mantik, 127 Md. 197 , 96 A. 261 .

On the question of contributory negligence as a matter of law, the facts in the case of Foos v United Railways & Electric Co., 136 Md. 540, 541 , 110 A. 849 , and the case of Colgate & Co. v. United Railways & Electric Co., 156 Md. 472 , 144 A. 519 , are so different from the facts involved in this case that they are not in point. This brings us to a consideration of the evidence of the appellee. The witness Crouse was the motorman operating the car at the time of the