Hess v. United Railways & Electric Co.

Urner, J., delivered the opinion of the court. In the trial of this suit for personal injuries, the plaintiff testified that, while driving his motorcycle across the defendant railway company’s tracks at the intersection of Broadway and Fayette Street in Baltimore, the rear wheel of the motorcycle was struck by one of the defendant’s cars, and he was thrown to the ground and seriously injured; that as he approached Fayette Street, going south on Broadway, he had the motorcycle under control and looked both ways on the intersecting street after he passed the building line, but saw no car approaching from either direction, and then proceeded to cross; that when he was on the nearest, or westbound, track, he saw for the first tinte a street car coming at a high rate of speed on the eastbound track; that he was then too close to that track to stop in safety before reaching it, and the only possibility of avoiding a collision was through an effort to cross ahead of the car; that he almost succeeded in clearing the track, but, as the rear wheel of the motorcycle was passing over 'the south rail, it was struck by the fender of the car and the injuries sued for resulted. There was testimony on behalf of the defendant tending to show that its ear was moving at a moderate speed and was being operated with due care at the time of the accident, and that the plaintiff’s motorcycle was driven recklessly in front of the approaching car. The case was submitted to the jury on the issues of primary and contributory negligence, and the verdict was for the defendant.

The only exception in the record has reference to the prayers. Prejudice is mainly alleged to have resulted to the plaintiff from the instructions granted at the instance of the defendant because they disregarded the last clear chance doc ⁶⁰⁷ trine. No prayer was offered by the plaintiff submitting that theory, and we find no evidence in the case upon which it could be sustained. When the plaintiff first saw the car he says it was so near that it would have struck him if he had attempted .to stop, although his motorcycle was then under control and could have been stopped within a space of six feet.

While he stated that he could see no car on E'ayette Street when he passed the building line, and had a clear view of the street in both directions, his observation must have been very casual, for the ear was actually in sight and within a short distance of the crossing at that moment. One of his witnesses testified that the ear was only half a block from the crossing when the plaintiff was about an equal distance from it on Broadway. The car was coming up a heavy grade and could not have been moving at high speed, because the testimony on both sides of the case shows that it stopped within a few yards beyond the point of the collision. The motorman testified that when he first saw the motorcycle it was about eight or ten feet from the car, and coming at such great speed that it ran over the fender before the car could be stopped.

Whether the motorcycle was moving as slowly as the plaintiff states, or as rapidly as the motorman describes, it does no't appear that the movement of the ear could have been arrested in time to avoid the collision after the plaintiff’s intention to cross in advance of the ear might reasonably have been anticipated. It would only be in the event that the motorman knew, or by the exercise of due care might have known, of the plaintiff’s probable peril in time to avoid the accident, that the doctrine of the last clear chance would be applicable. The evidence does not prove the existence of conditions which entitle the plaintiff to complain that the principle just mentioned was not embodied in the