Kaufman Beef Co. Ex Rel. Travelers Insurance v. United Railways & Electric Co.

Urner, J., delivered the opinion of the Court. The appellant’s employee, while engaged in the performance of his duty as driver of its motor truck, was killed in a collision of the truck with a car of the United Railways and Electric Company of Baltimore. The accident was due to the fact tha-t, one of the wheels of the motor truck ran over a bundle of Saturday Evening Posts, which had been oast into the street from a northbound car, and the truck, which was also proceeding northwardly, had its steering gear dis ⁵²⁶ arranged by tbe jar resulting from its contact with the package of papers, and was thus caused to swerve from its course and collide with a street car on the southbound track. Compensation having been awarded to the dependents of tbe deceased employee by the State Industrial Accident Commis^ sion, the pending subrogation suit, as permitted by statute (Code, Art. 101, Sec. 58) was brought by the appellant as employer, against the United Railways and Electric Company and the Curtis Phblishing Company, the latter corporation being the publisher of the papers which figured in the accident.

At the close of the plaintiff’s testimony a verdict was directed for the Curtis Publishing Company on the ground •.■that no evidence had been offered legally sufficient to prove that it was responsible in any way for the injury on account of which recovery is sought in this suit. The trial then proceeded against the United Railways Company and resulted in an undirected verdict in its favor. The most strongly urged exception in the record was taken to the granting, on behalf of the remaining defendant, of a prayer which is said to involve an improper and injurious segregation of facts. In order that the prayer may be understood, in its relation to the issue which developed at the trial, only a brief reference to the testimony is required.

The principal witness for the plaintiff was Thomas Lewis, who testified that he was seated in the motor truck beside the driver whose life was lost in the accident, and that the bundle of papers was dropped off the moving northbound street car just as the front of the truck was about opposite the rear end of the car, and that 'there was not sufficient time for the •driver of the truck to avoid the obstacle thus placed in his way. The accident happened in the afternoon, and the package was a plainly visible object in the street. But the testimony of Lewis that it'was thrown from the car when the truck was too close to turn aside from the obstruction tended to- relieve the driver of any imputation of contributory neg ⁵²⁷ ligenee. All the other witnesses, however, on both sides of the ease, who were questioned on the subject, testified iu effect that the car from which the papers were dropped had gone northward sometime before the truck reached the place where they were deposited.

According to this testimony there was ample opportunity for the driver of the truck to see and avoid the obstacle. If in fact tbe package bad been thrown into the street and was visible to tbe driver long before be arrived at the spot where it was lying, there could he no escape from the conclusion that in allowing one of the wheels of the truck to run over it he directly contributed to Ms fatal injury. If it was primary negligence for the motorman on the street car to drop the bundle of papers in the street, it was certainly contributory negligence on the part of the chauffeur to fail to avoid that object, provided there was time and space to accomplish that result by the exercise of due care. The same possibility of danger to traffic which would make it negligent for the motorman to place such an object in the street, would make it incumbent upon those using tire street to exercise a proper degree of care to avoid the danger.

It is an undisputed fact that the package could be seen from a considerable