North Baltimore Passenger Railway Co. v. Arnreich

Roberts, J., delivered the opinion of the Court. The defendant company owns and operates a street railway in the City of Baltimore. At about half past seven o’clock in the evening of January 15th, 1892, the plaintiff, going northward on Howard street, sought to cross Centre street, and was run over and injured by one of .the defendant’s cars. The railway track of the defendant extends up Howard street to Centre street; then turns to the right, and continues in an easterly direction down Centre street.

The plaintiff, coming up on the Bast side of Howard street, on the evening of the accident, was compelled to pass over the track of the defendant, at the point where it curves from Howard into Centre street, and while so crossing Centre street, the accident happened. It appears from the testimony on the part of the plaintiff, that he was familiar with the locality, and had been for nearly five years accustomed to cross the track of the defendant at the same point where the accident occurred, and that if he had seen or heard ⁵⁹¹ the car, all that was necessary for him to have done, was to stand still and let the car pass, but that he looked before him and saw no cars, and hoard none; that, after the car turned into the curve, it was in the rear of the plaintiff, and distant about fifteen feet from the point where he was struck. Mrs. Eickler, a witness on the part of the plaintiff, testified, that she was a passenger on the car in question, and was, at the time of the accident, looking out of the front window at the driver, and the horses; that when they reached the curve the driver hit the horses, and they went quickly around the curve; that she saw the plaintiff on the track just as he was struck; that he was just about stepping over, but the car was coming too fast; that the driver did not see the plaintiff go under the car, but was speaking to another car driver coming down Howard street; if the car had not gone so fast the plaintiff could have gotten over first, but it was impossible, the car was coming too fast; the pole struck the plaintiff on the left side; the driver was looking to the left, and spoke to a man coming down Howard street; the car did not stop at the switch. Other testimony was given tending to prove that the driver whipped the horses in his car in such manner as to cause them to rear and become frightened, and gallop around the curve.

The testimony offered by the defendant materially conflicts with that of the plaintiff. The question which has been chiehy argued at the hearing in this Court is whether, on the facts stated, the plaintiff had not by his own negligence directly contributed to produce the injury complained of, and accordingly debarred himself all right of recovery; and whether in that state of case, the Court below had not committed error in refusing to grant the defendant’s first prayer, which would have taken the case from the jury. We have repeatedly held that in cases of this character, the Court is never at liberty to withdraw the case from the ⁵⁹² consideration of the jury, unless the material facts in issue in the cause, are undisputed and clearly establish the controlling fact that the negligence of the plaintiff has directly contributed to produce the injury complained of. Since the decision in the Exchequer Chamber of Tuff vs. Warman, 94 Eng.

Com. Law Rep., 583, this Court has steadfastly adhered to the rule there laid down, as furnishing the clearest and most satisfactory guide in cases of this kind. For convenient reference, we here repeat it, as follows: “It appears to us, the proper question for the jury in this case, and indeed in all others of the like kind, is whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened. In the first case, the plaintiff would be entitled to recover, in the latter he would not, as but for his own fault the misfortune would not have happened.

Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover, unless it were such, that, but for such negligence or want of ordinary care and caution, the misfortune could not have happened; nor, if the defendant might by the exercise of care on his