State Ex Rel. Egner v. United Railways & Electric Co.

Beiscoe, J., delivered the opinion of the Court. This action was brought by the equitable plaintiffs, in the Baltimore City Court against the United Railways and Electric Company of Baltimore to recover damages for the alleged killing of one David Egner. At the close of the plaintiffs’ case the Court instructed the jury that the accident to the deceased was directly contributed to by his own negligence and their verdict must be for the defendant. The single question, then, presented on the appeal is whether the evidence supports this ruling.

The appellant is a body corporate duly incorporated under the laws of the State of Maryland and owns a railway track and cars for the transportation of passengers along the Harfprd avenue in Baltimore County. On the 23rd of June, 1901, the deceased went on the platform of the defendant for the purpose of boarding one of its cars as a passenger, from Southern avenue to Baltimore City, and while standing thereon and waiting for a car was struck by a rapidly moving car, knocked therefrom, sustained serious injuries, and from which he died. The cause of action is alleged to be the negligence of the defendant in constructing the platform, by making it too narrow and omitting hand rails for the protection of passengers, so as to prevent them from falling at the southerly end of the platform. ³⁹⁹ The railway tracks of the appellee company are constructed on the west side of the Harford turnpike, which runs in a northerly and southerly direction. The platform is located at the corner of the turnpike and Southern avenue and between the westernmost or south-bound track and on the west side of the turnpike.

This platform is used by the passengers in boarding the cars, and is described as level and filled with ashes. It was about fifteen feet long and four feet wide from the track. A car with a foot-board, would extend over the platform about eighteen inches, leaving a space of about two feet and a-half for passengers to stand on, while waiting for a car. The accident occured under the following circumstances: The witness Eisennacher, who was on the platform at the time of the accident testified that he was on the platform three or four minutes before the Egners came; that he stood at the north end of the platform, second, John Egner with his small child in his arms, third, Mrs. John Egner and fourth, at the south end of the line David Egner, the deceased; that the car was coming from the north and going south.

The first car was signalled, but it did not stop. The second car did not stop, but passed the platform on which the party was standing. The third car came at the rate of thirty or thirty-five miles an hour, he tried to stop it but failed. The next thing he saw was Mr. Egner in the gutter along side of the platform.

He was struck by the foot-board of the car. He also testified there was nothing to obstruct the view of the car from the platform, for a distance of 150 yards. John Egner who was standing on the platform near the deceased, corroborated the evidence as to the location of the accident, but did not see the car strike the deceased. Mrs. Egner who was present did not see the car strike the deceased, but as she turned around and looked for her child, did not see the deceased until they had picked him up.

Could see the car approaching at a distance of 400 feet, and they were standing close together on the platform. The witness, Albrecht, who lives at the corner of Harford ⁴⁰⁰ road and Southern avenue, the place where the accident happened, testified, that the platform is a stopping place, as a matter of fact, it is