Miller v. United Railway & Electric Co.

Burke, J., delivered the opinion of the Court. This is a suit for personal injuries brought by Dora Miller, an infant, by her' father and next friend, against the United Railways and Electric Company of Baltimore. The case was tried in the Court of Common Pleas and resulted in a verdict and judgment for the defendant, and the plaintiff has appealed. The material facts briefly stated are, that on the 28th day of July, 1906, between the hours of eight and nine o’clock in the evening,' Wolf Miller, the father of the plaintiff, was driving east on Baltimore street in company with the plaintiff and her sister.

He was driving one horse attached to a buggy. The father sat on the right side of the buggy; Rebecca Miller, another daughter, sat immediately to his left and in the centre of the buggy; and the plaintiff sat on the left side of the buggy. When he approached the intersection of Baltimore and Wolfe streets the horse stopped, and in order to avoid an obstruction of some kind, Miller turnéd his horse to the left, and in doing so the left front wheel of the buggy dropped into a cable slot between the tracks of the railroad company. In trying to get the wheel .out, the other wheel fell into the slot, and the horse fell in the street.

Miller testified that the buggy had no top, and the tire of the wheel was about one inch wide; that as the wheel sank into the cable slot the buggy hung ⁹² down on one side, and that he and Rebecca fell over on the plaintiff; that both wheels on the right side were off the ground, and were revolving in such a manner that he could not get out on that side, and that he was obliged to get out on the left side of the buggy; that the left wheels sank in the slot up to the hubs, and that it took two men about ten minutes to get them out. There was evidence tending to show that the plaintiff was seriously injured as the result of this occurrence. The plaintiff offered in evidence Section 24 of the Baltimore City Code of 1906, which imposes upon railroad companies using the city streets the duty to keep the streets covered by their tracks, and extending two feet on the outer limits of either side of the tracks, in thorough repair, and the declaration alleges that the injury sued for was caused by the defendant’s breach of this duty. There is no evidence in the record showing when, or by whom the cable was constructed, but assuming, as we must, that it was constructed under proper authority and was so constructed as not to endanger the safety of travel upon the streets, it was necessary for the plaintiff to produce evidence tending to prove that the defendant had negligently suffered or permitted it to be and remain in an unsafe condition for travel, and that this negligence caused the injury complained of.

It is not pretended that any other portion of the street covered by the tracks was out of repair, or that there was a failure of duty in any other respect on the part of the defendant. There is not the slightest evidence in the record to show that the cable slot was out of repair at the point where the accident happened, or that it was wider than the authorized width. Negligence cannot be imputed to the defendant from the mere fact that the wheels of the buggy fell into the slot, because that may have been caused by some, concealed imperfection, or by some other defect of which the defendant had no actual or implied notice. In the absence of all evidence as to the actual condition of the cable slot at the place of the accident, the case made by the plaintiff is entirely con- ■ ⁹³ sistent with nonliability on the part of the defendant, and fails to show a case of actionable negligence.

The provision of the City Code does not make the railway company an insurer of the safety of travellers using those portions of the public streets therein referred to. It imposed upon the company, in the respect mentioned, the same measure of duty as that devolved by law upon the municipality in the maintenance and care of the public streets. “Under statutes requiring street railway companies to keep in permanent repair that portion of the street between its tracks, and two feet outside thereof, a street railway company owes the public the duty to keep such portion of the pavement in repair, so that a person injured by its failure to do so may maintain a suit for damages against the company. The company is notj however, liable for defects or imperfections which may be caused by traffic, such for instance as rails becoming loose, or spikes projecting, except upon proof that it failed to repair such defects or imperfections after reasonable opportunity for ascertainment thereof had elapsed. The rules governing its duty toward those using the streets and the evidence necessary to sustain the charge of negligence are not the same as are applicable to it as a common carrier of passengers in relation to its duty to its passengers.” Nellis Street Railroad Accident Law, p. 222.

In Sanford v. The Railway Company, 16 Pa. Sup. Court, 393, which was a suit to recover for the death