Foos v. United Railways & Electric Co.

Ubnee, J.. delivered, the opinion of the Court. While the appellant’s automobile, driven by himself, was, crossing the railway tracks of the appellee at the intersection of West Baltimore and Pulaski Streets, in the City of Baltimore, it was struck by an electric street, car and damaged. The cost of the necessary repairs is sought to be recovered in this suit. A verdict, in favor of the railway company was rendered under an instruction granted by tbe trial Court on the ground that tbe plaintiff’s, own negligence directly contributed to the accident.

The case was thus terminated at tbe dose of tbe testimony offered on behalf of tbe plaintiff, and the ruling referred to is tbe only one presented for review by tbe pending1 appeal. The accident occurred in the day time. The plaintiff testified that as he approached Baltimore Street, from the north on Pulaski Street, just prior to the collision, his automobile was moving on an upgrade at the rate of twelve miles ■an hour, and, that he sounded his horn and reduced the speed of his car before ha reached the comer. He was, then on the west side of the street near the curb.

Just before reaching the building line on tbe north side of Baltimore Street lie looked toward the east, but bis view was obstructed in that •direction by a high wall enclosing a lot of ground located a,t tbe northeast corner of the two thoroughfares, and also by a row of trees, with low branches in foliage, extending eastwa.rd.ly along the outer margin of the Baltimore Street sidewalk. After the line of the trees was passed and before the railway tracks were reached the plaintiff could have had a ■clear view of the trades to the eastward for the distance of a block. According to his own. testimony, he did not avail himself of this opportunity to look for approaching cars, but •attempted to cross without taking that precaution, and for ⁵⁴² the first time saw the westbound ear when it was only about fourteen feet distant. His automobile was then crossing the track on which the car was rapidly moving toward him, and it was only by increasing the speed of his motor, and thus almost clearing the track, that he was able to avert a much more serious collision.

There is evidence in the record tending to show that there was negligence on the part of the motorman of t-he electric car in failing to give the customary signal and in operating the car at an excessive rate of speed as it approached the intersection of the two streets. But the testimony of the plaintiff conclusively proves his contributory negligence. In the exercise of ordinary care he should have looked for approaching car’s after he had passed beyond the wall and trees by which his view had been obstructed. An ample opportunity for such an observation was afforded after he entered Baltimore 'Street and while his automobile was at a safe distance from the railway tracks.

In looking for cars only from a place where it was impossible for him to see whether any were approaching he did not discharge his duty either to himself or to those traveling on the street railway. While the plaintiff’s right to the use of the street was co-equal with that of the railway company, the obligation to use due care to avoid an accident was reciprocal. United Rys. Co. v. Walkins, 102 Md. 267 ; United Rys.

Co. v. Mantik, 127 Md. 200 . The fact that the operation of the street car may have been negligent did not excuse the plaintiff from the performance of his duty to take proper precaution for his own safety and that of the railway company’s passengers. It does not appear that