Jones v. United Railways, Etc., Co.

Schmucker, J., delivered the opinion of the Court. The appellant sued the appellee in the Superior Court of Baltimore City to recover damages for an injury suffered by him while riding in one of its electric street cars. At the close of the plaintiff’s evidence the Court granted the defendant’s prayer instructing the jury that the uncontradicted evidence showed the plaintiff to have been guilty of negligence directly contributing to the accident and directing them to render a verdict for the defendant. The verdict was rendered accordingly and from the judgment entered thereon the plaintiff appealed.

The plaintiff testified in his own behalf as follows: About five o’clock on the afternoon of August 20th, nineteen hundred and two, he got into the car at Govanstown, to go to his home in Baltimore, and paid his fare. The car was a long eight wheeled one with an aisle through its center and the seats placed in pairs on the two sides of the aisle. The windows and sides of the car with the exception of the upright posts had been removed, so as to make it an open car. Between each two of the posts along the sides of the car there was a low wire netting with a narrow brass rail on top of it.

All ot the seats were double seats except those at the two ends oí ⁶⁶ the car, where there was a double seat on one side of the aisle and a single seat on the other side. The plaintiff on entering the car took the single seat at its rear end. While sitting there, with his elbow resting on the brass railing but entirely within the car, the upper part of his arm' near the shoulder was struck and injured by a marble slab which projected from a passing wagon that collided with the car. His recollection was that the car and wagon were going in opposite directions at the time of the accident.

He neither saw nor heard the wagon before the stone struck him nor had he any warning of its approach. John M. Russell an eye witness of the accident testified for ^ the plaintiff, that he was sitting in the car on the opposite side from the plaintiff and saw the latter struck by the stone slab. His description of the accident was as follows: “Well, going along up Fayette street I heard a screeching noise which drawed my attention, a kind rubbing noise until it got louder and I noticed this piece of marble some distance from the colored man and it.was screeching along the car and it was a wagon loaded with slabs of marble in it and the slabs projected over the wagon and this slab that was out must have been a little further than the others. I don’t know, whether :they might have been all out, I didn’t notice that, but when it got close I seen it when it caught the old 'fellow’s arm and kind of pulled him around that way (indicates) and after it crossed Calvert street I thought the conductor had seen-it too for he was standing on the back platform.” He further testified that as the marble slab passed along the posts at the side of the car it struck each post and made a loud screeching noise “quite enough to attract anybody’s attention on board that car” * * “anybody who had any hearing at all.” That the two vehicles were going in the same direction at the corner of Calvert and Fayette streets and that “The car had stopped on Fajmtte street and started before it caught this wagon, the wagon was going on and of course it got into the narrows, there was where it caught the car, it caught the wagon right in the narrows and the further they both went ⁶⁷ the tighter they got.” That the conductor did not stop the car until it got to St. Paul street.

The witness took the plaintiff from the car at Charles street and assisted him to a hospital. He seemed to be in a dazed condition at the time. The appellant when injured by the collision of the car with the stone wagon was a passenger in the car, had paid his fare and was occupying one of the seats provided by the appellee for the use of its passengers. His elbow, although resting upon the brass rail at his side, did not project beyond the car.

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