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

Fowler, J., delivered the opinion of the Court. This is an action to recover damages for the use of the widow and infant children of John Meidling who was fatally injured by one of the cars of the United Railways and Electric Company of Baltimore at the intersection of First avenue and Fifteenth street. ⁷⁴ At the close of the plaintiff’s testimony the Court at the instance of the defendant withdrew the case from the jury on the ground that by the undisputed evidence in the cause the negligence of the deceased directly contributed to the accident which caused his death. The single question presented by this appeal is whether there was error committed in giving the instruction just mentioned. It appears from the evidence that the deceased together with a companion, Mrs. Plitts, was, on the evening of the 7th of February, 1901, after dark, between seven and eight o’clock, driving along First avenue which is a public thoroughfare.

They were driving west approaching Baltimore and had reached Fifteenth street on which the tracks of the defendant company are laid. At this crossing the view in both directions on Fifteenth street is unobstructed and an approaching car could be seen by persons on First avenue before going upon the tracks of the railway. Indeed the evidence is clear and uncontradicted that both the deceased and his companion saw the car before attempting to cross. Mrs. Plitts testified as follows: 'T saw the car; it looked like it was squares away ; we could see it plainly, which we did see, and we had plenty of time to cross and we made no effort to hurry or anything else, because it was time enough to cross, because the car was over two squares off; he got up and looked out the sides of the wagon ; it had no curtains on it; he raised himself and looked both ways and I looked myself.” It also appears from the evidence that the railroad on Fifteenth street was a T rail construction and that the way called Fifteenth street runs through the open fields and wras not a thoroughfare.

From the corner where the accident occurred there was a clear and unobstructed view for two blocks up Fifteenth street from whence the car was approaching and the headlight was burning full. There were only two other witnesses who saw the accident and their testimony substantially agrees with that of Mrs. Plitts. Can there be any doubt under the state of case here presented that the unfortunate man who was killed was guilty of ⁷⁵ gross contributory negligence under the decision of this Court applicable to electric railroads in the open country. In McNab v. United Rys.

Co., 94 Md. 719 , we said : “The construction out in the open country where this accident happened, is altogether different from that upon the streets where flat rails are used and where no cross ties are visible. The rate of speed at which cars are run in the country is from twenty to twenty-five miles an hour, whilst that permitted in the city is very much less. The danger of collision with a car is more imminent when crossing these tracks in the country than it is when driving over or along street railway tracks in a city.” Again. “The conditions as to construction, location and speed and the danger incident to crossing the tracks being precisely the same in this instance as they would have been had the motive power been steam, the legal principles defining contributory negligence cannot be different merely because the motive power was electricity.” If we applied to the situation in the McNab case the rule which governs and defines the character of care which must be observed in approaching a steam railway it would seem to follow that the same rule is applicable here. The conditions are substantially similar.

Here as there we have an electric railway running through the open country with a T rail construction. It is evident from all the evidence that we have here as there a rapidly approaching car in the sight of the traveller, who, in spite of the fact that he saw it, drove leisurely on the track and was run over and killed. It is conceded, of course, that the defendant was negligent in failing, perhaps, to give signals and in running at a higher rate of speed than was allowable, but under all the authorities such negligence of the defendant does not palliate or excuse the negligence of the plaintiff. Thus in McNab's case it is