Mattingly v. Montgomery

Burke, J., delivered the opinion of the Court. This is a suit brought against the master to recover damages for injuries alleged to have been sustained by the plaintiff in consequence of the negligence of the defendant’s servant. On the I2th of July, 1906, George Harmison, ran down and severely injured the plaintiff by a horse and wagon of the defendant. The case was tried in the Circuit Court for Allegany Count)', and from a judgment entered in that Court, the defendant has brought this appeal.

The declaration alleges that on the date mentioned while the plaintiff was walking along Virginia avenue at or near a point just immediately south of the Baltimore and Ohio Railroad crossing at said avenue, it being one of the public highways of Allegany County, she was run down and struck by a horse and wagon driven by said Harmison who was driving the horse as the agent and servant of the defendant, and was knocked down and rendered unconscious and was seriously ⁴⁶⁴ cut in the forehead and otherwise permanently injured; that at the time said plaintiff was injured she was using’due care and caution in passing along said highway, and that the injuries received by her were the result of the recklessness and negligence of the agent and servant of the defendant in driving and controlling the horse. There are certain facts which the evidence establishes beyond all question. These are, first, that the plaintiff was struck and injured by the horse and wagon driven by Harmison; second, that at the time she was so injured, Harmison was driving the horse as a servant of the defendant, and was acting at the time within the scope of his employment, and in his master’s service.. I'f the injuries which the plaintiff sustained were the result of the negligence of Harmison, the defendant must be held liable; provided she was free from contributory blame.

The principle upon which the master’s liability is determined in cases of this kind is thus stated in Evans v. Davidson, 53 Md. 249 ; “If the servant be acting at the time in the course of his master’s service and for his master’s benefit, within the scope of his employment, then his act, though wrongful and negligent, is to be treated as that of the master, although no express command or privity of the master be shown. This principle is sanctioned by all the authorities.” Negligence in the defendant’s servant is the foundation of the action, and the proof must show, or tend to show that the injuries sued for were caused by that negligence. The existence of negligence must be sought for in the facts and surrounding circumstancas of each particular case. In Cooke v. The Baltimote Traction Company, 80 Md. 554 , we said: “Negligence is essentially relative and comparative, not absolute.

It is not even an object of simple apprehension apart from the circumstances out of which it grows. As these circumstances necessarily vary in their relations to each other, under different surroundings, they inevitably change their original signification and import. Hence it is intrinsically true that those things, which would not under one condition constitute negligence, would on the other hand under a different, though not neces ⁴⁶⁵ sarily an opposite condition, most unequivocally indicate its existence.” . Now, the record before us, contains evidence tending to show the following facts: Virginia avenue in the City of Cumberland is crossed by five tracks of the Baltimore and Ohio Railroad Company.

The crossing is about forty feet wide, and the distance across the tracks is about seventy-five feet. All the witnesses who testified upon the point spoke of this crossing as being very dangerous, because of the frequent passing of trains and the shifting of engines at that point. The evidence shows that there was a watch box near the crossing when the plaintiff was injured, and that there was a foot path,, or pavement on Virginia avenue close to the watch box. The plaintiff lived in South Cumberland, and on the day of the accident had gone to the store of Mr. Kline, and was returning to her home.

In order to reach her home it was necessary for her to cross the tracks of the railroad, which she had done in safety, and when she was in the act of stepping off of the track to the pavement on Virginia avenue she was struck by the horse and wagon which came across the tracks behind her, and which she neither saw nor heard. There was an engine on the tracks, about half way over the crossing at the time she was injured. This engine was in charge of Conductor George W. Holtzman, and had come up to the crossing from the lower end of the company’s yard. There is also evidence tending to show that Harmison drove down Virginia avenue at a rapid rate of speed; going about twelve miles an hour, and without stopping continued across the tracks; although he saw the engine approaching when he reached the edge of the crossing.

He continued across at a rapid speed, but the engine reached the crossing before he could get over. The engine stopped about midway of the crossing, and when Harmison attempted to pass in front of it his horse became frightened at the noise of escaping steam and bolted, or was pulled upon the sidewalk, and knocked down and injured the plaintiff. Mr. Holtzman^ who was in charge of the yard engine, testified that his engine had stopped just about half way over the crossing; that he saw ⁴⁶⁶ the defendant’s horse rush past in front of the engine, and strike the plaintiff and knock her down; that she fell on her face and turned over and that the wheel struck her alongside of the head; that the horse was going rapidly, and that the plaintiff was on the sidewalk when she was struck. James A. Hunt, who had charge of another engine which was upon the tracks at the time of the injury, testified that Ije saw the horse coming down Virginia avenue “at a pretty tolerable fast rate of speed,” about twelve miles an hour, and that it did not stop before going upon the crossing.

The witness, John Hunt, who was a fireman on the engine in charge of James A. Hunt, testified as follows: “We had come up to the crossing there and stopped, and I don’t know how long we were standing there. It wasn’t very long. The bralceman was standing on the foot board, and all at once I looked across the crossing and noticed this team coming across hurriedly, and there was a-yard engine standing on thé crossing, and I guess probably may be eight or ten feet of the front end of the engine had approached the crossing and there was room enough for me to see, and this lady was walking down the sidewalk, we call 'it a sicjewalk, it is close to the watch box,'and all at once I saw that he was going to hit the lady and I started to hollow, but the deed was done too quick, the horse struck the lady and knocked her down.” He further, said that the engine had gotten up to the crossing and stopped. That the team had not gotten in front of his engine, but the yard engine “was stopped dead still.” There was evidence tending to show that Harmison could have stopped the team with safety after he had gone upon the crossing and thus avoided the injury, and also that after passing the engine hp might have turned to the left and avoided striking the plaintiff.

There was nothing to obstruct his view across the .track, and it might have been reasonably inferred from all the evidence that Harmison could have seen the plaintiff had he looked. Harmison, the driver of the team, testified that he was signalled to cross by the watchman, Mr. Coonrod, who has since died; that he knew the horse would ⁴⁶⁷ frighten at steam if he got close to it; that after getting about half way over the crossing he saw the engine approaching, running at the rate of five miles an hour; that he drove down Virginia avenue to the crossing “pretty slow;” and that he slacked up at the crossing, but did not stop; that he heard the engine puffing, and that it was fifteen or twenty yards from the crossing when he first saw it, that he had just hit the edge of the crossing when he first saw it, but that he did not stop, but thought he could get across before the engine got there; that when the engine got within five feet of him the “fellow slapped on his air,” and “my horse got scared and commenced to plunge, and I held on to him all I could, and the woman I didn't see her when the horse hit her — the wagon hit her is all I know.” On cross-examination he testified as follows:. "Q. How far was your horse on the crossing before he started to wave? A. I wasn’t on the crossing when he waved me.

Q. How far were you away from the crossing? A. At the edge of the crossing. Q. And you saw the engine at that time? A. Not right then.

Q. When did you see it? A. I saw it after I started on the crossing, right on the edge of the crossing, it was coming up. Q. And you thought you could get ahead of the engine? A. Yes sir.

Q. You took the chances of beating that engine, didn’t you? A. Yes sir. Q. Now Mr. Ilarmison if you hadn’t made up your mind tbat you could beat that engine out, you could have stopped your horse in time, couldn’t you? You could have stopped him and