Phillips v. Washington & Rockville Railway Co.

McSherry, C. J., delivered the opinion of the Court. This is a personal injury case and there is but one question raised on the record. At the conclusion of the testimony the trial Court granted an instruction which directed the jury to return a verdict in favor of the defendant on the ground that ⁴⁵⁶ the plaintiff hád been guilty of contributory negligence. Was that ruling right?

All the other prayers presented by both sides were rejected, but inasmuch as they are not included in the only bill of exceptions contained in the transcript they will not be alluded to, even though they have been appended to the record and have been printed therein immediately after, but not as a part of the bill of exceptions. The Washington and Rockville Electric Railway runs from Washington to Rockville. For some portion of its route it occupies a part of the roadbed of a public road which was formerly a turnpike road. At the place where the accident occurred and for some distance on either side of that spot the felectric roadbed occupies from ten to fifteen feet in width of the upper or eástern side of the old turnpike road.

No plat of the locality appears in the record and the description of the surrounding' topography is very confused and imperfect. Going from Rockville towards Washington on the turnpike road the railroad at and along the scene of the accident is upon one’s left hand—that is, upon the left hand margin of the turnpike road. At a point described as Lochte’s shop, nearer to ■ Rockville than the place of the accident, there is a long siding used to enable cars going in opposite directions on the single track of the electric railroad to pass. Farther down towards Washington is Walsh’s crossing, a road or way leading from the upper or eastern side of the turnpike road to Walsh’s residence and to Chevy Chase Circle, a thickly settled suburban settlement not far distant from Washington.

A car going from Rockville to Washington after rounding a curve at Lochte’s shop and reaching^ Wilson’s store can be seen from Walsh’s crossing on looking towards Rockville for a distance of three hundred yards before it gets to the crossing. On the twelfth of August, 1903, Phillipps, the appellant, was engaged in makinghay on the farm ofDr. Walsh near the crossing. The car from Rockville to Washington was due at the siding at two o’clock and was not in the habit of leaving the siding until the arrival of the car from Washington to Rockville, which was likewise due at the same hour.

The appellant, who lived in ⁴⁵⁷ the vicinity of the siding and was familiar with the running of the cars, left his home shortly before two o’clock P. M. to go to Walsh’s field. He rode from his home sidewise on his horse, in his shirt sleeves with a pitchfork on his back. The direction he went along the turnpike was towards Washington. Both of his legs were on the right hand side of the horse and his back was consequently towards the .railway track.

He was proceeding in a line parallel to the railway. When he reached Walsh’s crossing he turned to the left and this brought his horse face to face with the railway tracks. He was then between ten and fifteen feet distant from the tracks. He could have seen, according to one statement in the record, nine hundred feet up the track towards Rockville, and according to another statement four hundred and fifty feet in the same direction, at the moment he turned to his left to go over the crossing.

He says he slightly halted his horse and looked in both directions but saw no car approaching from either Rockville or Washington. He then proceeded to cross the track and after he and his horse had gotten nearly over, the car from Rockville struck the horse on the left hindquarter and threw horse and rider against a trolley pole, injuring both. The theory upon which the Court below acted in granting the prayer to which exception is taken assumed that there was evidence tending to prove some negligence on the part of the railway company, since it denied the appellant a right to recover because he had been guilty of contributory negligence; and there can be no contributory negligence where there has been no primary negligence on the part of the defendant. We need not, therefore, inquire whether the railway company was guilty of negligence on the occasion in question; nor need we review the evidence tending to establish such negligence, for the existence of negligence is implied as a postulate in the granted instruction.

On the facts stated was there such a clear, decisive and prominent act on the part of the appellant as in law amounted to contributory negligence? Do the facts leave no room for ordinary minds to differ in respect to the conclusion to be drawn from them? ⁴⁵⁸ If the approaching car could have been seen by the appellant in time to avoid the collision had he looked in the direction It was moving, and he says he did not see it; then it follows that he did not see it solely because he did not look, notwithstanding he says he did look, unless it is shown that his eyesight was so defective that it was impossible by reason of that fact, for him to see it. But there is no pretense that his vision was impaired and hence the conclusion