Seidl v. Mayor of Baltimore

Thomas, J., delivered the opinion of the Court. This suit was brought against the Mayor and City Council of Baltimore to recover for an injury alleged to have been caused by the negligence of the defendant’s agent or servant. The declaration alleges ⁹⁸ “that oil July 2nd, 1917, while the plaintiff was lawfully upon a public highway in the City of Baltimore, to wit, Griffith’s Court, using due care and caution, a horse hitched to a cart and being driven by an agent or servant of the defendant, ran into and upon the plaintiff, injuring her about the feet seriously and permanently.” At the conclusion of the testimony the Court below granted prayers instructing the jury (1) that the uncontradicted evidence in the case showed that the plaintiff had been guilty of contributory negligencej and (2) that the plaintiff had offered no evidence legally • sufficient to entitle her to recover, and-this appeal is from a judgment in favor of the defendant for costs, entered upon a verdict rendered in accordance with said instructions. The plaintiff testified that on the 2nd day of July, 1917, she went to see her sister, who lived at Ho. 720 Eastern avenue.

While she was there her sister, who was sick, asked her to go to the store for her. She! went out the “back alley way,” which runs between Eastern avenue and Fawn street to President street, to a grocery store on High street, near Fawn street. High street is east of and runs parallel with President street. In returning from the store by way of the alley, she had to cross President street.

The' alley was paved with “cobble stones,” with the gutter in the middle, and was very narrow—just wide enough for a person to pass on either side of a wagon or cart standing in the middle of the alley. When the plaintiff was returning from the store, between three and four o’clock in the afternoon, as. she entered the alley from President street she saw a horse, attached to one of the “city street carts;,” standing in the alley near and facing President street. They were not in the middle of the alley, but so far to one side that she could not pass them on that side. The driver was on the other side, in a “stooping position,” putting dirt in the cart.

She approached the horse and wagon on the side of the alley where there was not room ⁹⁹ for her to pass, and when she reached the horse’s head she stopped. "When the driver raised up and saw her, he told her that he would move the horse so* she could pass. He took hold of the bridle on the horse, and instead of moving the horse to the other side of the alley, he pushed the horse towards her and the horse’s foot came down on her foot and caused the injury complained of. She further testified that the horse and wagon did not move after she entered the alley, but remained in the same position on one side of the alley, and that she did not attempt to pass on the other side because the driver was on that side; that she stopped when she was about a foot from the horse’s head and remained in that position while the driver was attempting to move the horse, until he pushed the horse toward her and the horse stepped on her foot; that she did not step back or move out of the way when the driver went to move the horse; that the horse did not move forward, or1 move his hind