O'Meary v. Baltimore & Belair Electric Rwy. Co.

Pattison, J., delivered the opinion of the Oourt. The appellant, the plaintiff below, on the evening of November 7, 1916, attempted to cross the tracks of the appellee company, located on Harford road, in Baltimore County, and in so doing the buggy in which he was riding was. struck by one of the cars of said company throwing him therefrom and resulting in personal injuries to him. The suit in this case is brought to recover for such injuries. At the conclusion of the plaintiff’s evidence the defendant offered two prayers.

The first asked that the jury be instructed that there was no evidence legally sufficient to entitle the plaintiff to recover, and the second that the plaintiff was guilty of contributory negligence. Both of these prayers were granted and a-verdict directed for the defendant. The only exception before us is the ruling of the Oourt upon these prayers. The two tracks of the company, the north and south bound tracks, are located immediately west of the used way of Harford road, and are constructed of “T” rails fastened to cross ties, so laid as to prevent the use by pedestrians or vehicles of the surface of the gromnd between the rails and between the trades, except at crossings 'specially laid for the use and travel of both pedestrians and vehicles.

Harford road is intersected from the west by List avenue and at this intersection where the accident happened there is a curve in said road. For some distance west from Harford road List avenue is much lower than the land immediately north and south of it. This is the result of the grading of the avenue to the level of the bed of Harford road, which is much lower than the land immediately' west of it. Upon the property north of List ⁵⁰⁵ avenue and west of Harford road, which we have said, is considerably above both the bed of the road and the bed of the avenue is a hedge several feet high, running east on the north side of the avenue, and parallel with it to a point some ten feet from the south bound track of the defendant’s road, and thence from that point northward with the west side of said road; and because of such obstructions an approaching train from the north can not he seen from any point on List avenue ten feet westward of the south-bound track to a distance of more than twenty feet therefrom; that is to say, anyone traveling east on List avenue after reaching a point more than thirty feet from the west rail of the south-hound track can not, because of the obstructions aforesaid, see an approaching train from the north until he arrived at a point ten feet from the west rail of said south-bound track.

The plaintiff in describing how .the accident occurred said: “I was driving east on List avenue and as I came near the intersection of the Harford road, the tracks are right close to the hedge line there, and a car was coming north. I stopped for that and before I started again a car was coming south in, plain sight and gave plenty of warning with his: hell, and after a, pause, nothing else being in sight, I drove down to cross the track, and as I got on the track, I glanced up and saw another car coming a,t a rapid speed. I urged my horse to try to get out of the way, but before I could get across,, the car struck, my rear wheels, and the horse jumped forward; ran away and threw me out.” He further stated that it was about eight o’clock in the evening and dark at the time of the accident; that the intersection of Harford road and List avenue is in the suburban village of Lauraville; that the train approached him at a rapid speed and was not as the time ringing any bell. The plaintiff upon cross-examination testified that his home where he had lived for six years was a mile and a half from the scene of the accident; that he had driven over List avenue probably on an average of twice a month; that he was familiar with the location and surroundings where the acci ⁵⁰⁶ dent happened and that the place at which he stopped to allow the first and second trains to pass was thirty feet from the west rail of the south-bound track and that at such point he could not see a train approaching from the north.

He was then asked: , “Q. When you came down the track and looked up, didn’t you see this car coming just as you got to the track? A. Yes, the car was coming at a high rate of speed. Q. Just as you got on the track? A. Yes.

Q. Was it lighted? A. Yes. Q. It was night? A. Yes.

Q. Was the head light and everything on? A. Yes. Q. Was it a clear night or a stormy one ? A. It was a clear night, if I recollect right; it was not raining.” A photograph was then shown the plaintiff and he was asked: “Q. This