Gitomir v. United Railways & Electric Co.

Parice, J., delivered the opinion of the.Court. Louis J. Gitomir sued the United Railways & Electric Company of Baltimore for the damages to his automobile received in a collision with one of the street railways cars of the defendant. The accident happened in Baltimore City on Baltimore Street, in the block between High and Exeter Streets, within the thirty minutes from half past seven to eight o’clock on the evening of December 22nd, 1926. The automobile was driven by Rose Gitomir, the wife of the plaintiff, who, with her daughter, was the only person in the automobile.

The only witness for the plaintiff was his wife, and at the close of her testimony the defendant offered ⁴⁶⁶ no evidence, and the court directed a verdict for the defendant. The single question brought here by this appeal is whether there was any legally sufficient evidence to carry the case to the jury. The plaintiff’s wife was a competent driver. She parked the Studebaker automobile on the south side of Baltimore Street next to the curb, and went shopping, leaving the parking lights burning.

It was dark and cold, and the streets were lighted. When she returned she found an automobile owned by a certain Davidove parked some distance east and in front of her automobile, but within the same block. She got in her automobile with her daughter, who sat with her on the front seat, turned on her lights, started the engine, and looked around to see if everything was all right and if she could turn out without any danger. As the automobile then started from the curb she signaled with her hand through the open window the approaching movement.

As she was about to throw the engine in second gear and before the automobile had reached the railway, the automobile was suddenly struck in the rear by an approaching street railway car, which pushed the automobile forward until it was jammed between the railway car and the parked Davidove automobile. The witness was unable to state the distance the plaintiff’s automobile had traveled before it was struck, or how far it was pushed before it was shoved against the other automobile. Mrs. G-itomir did not see the approaching street car before the collision. She looked before she started to drive the automobile from the curb, but she' did not look again, although there was no traffic to draw her attention, and no obstruction to her view for the distance of a block and a half down a straight and level street, past High Street, to Falls-way.

She relied on her first look to see if it were safe to proceed, and did not glance back again because, she testified, there was then no street car anywhere in sight. There is no evidence that the street car was not lighted, nor that its headlight was not burning; nor that the gong was not sounded, nor that its speed was excessive, nor that it was ⁴⁶⁷ not under proper control and operation at the time of the accident. In short, no affirmative act of negligence on the part of the defendant’s servants causing the injury is shown, and this the plaintiff is bound to prove before there may be a recovery. The mere happening of the accident is not generally sufficient, and so here, unless actionable negligence may be inferred from the fact that the street car was not stopped in time to avoid the accident.

The resolution of this question depends upon the credibility of the witness’ testimony that, after she had started her engine preparatory to moving, she looked back and there was no street car in sight, although she had a clear and unobstructed vision of a block and a half to the Fallsway. She did not look again, and did not see the street car until after it had struck the rear of the plaintiff’s sedan. After looking, the witness let in the clutch, and drove the sedan from the curb, and, when she was about to put the automobile in second gear but before the automobile was in the street car track, the collision happened. In the few seconds it would have taken the automobile to move from the curb to the car tracks, the street car would not have gone the distance of a block and a half.

There is no evidence that the street car was not lighted nor that its headlight was not burning, so the testimony of the witness that she looked and did not see the car must be rejected as unworthy of belief, because, if a witness testifies to having looked and not having seen what, if the witness had looked, she must have seen, the conclusion is that either she did not look or did in fact see the car approaching the point of the accident. Sullivan v. Smith, 123 Md. 546, 556 . Upon either hypothesis, the plaintiff has failed in his proof, because there is no other testimony in the case from which the jury, short of speculation or conjecture, could say that the street car was operated at too high a rate of speed, or that those in charge of the street car saw, or should have seen, the perilous position of the plaintiff’s automobile in time to avoid the accident. In the absence of all evidence on these crucial points, the plaintiff fails to show primary negligence on the part of the defendant. ⁴⁶⁸ The accident did not take place at a crossing, but approximately midway of a block, where the defendant was not. charged with the obligation to- have its car under as immediate control as at a street comer.

United Rys. Co. v. Car neal, 110 Md. 211, 230 ; Capital Traction Co. v. Contner, 120 Md. 78, 85, 86 . However, streets are public thoroughfares laid out for travel, and every user in a vehicle or on foot has a right of way over the same at any point, subject to regulations by law and to the condition that he does