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

Offutt, J., delivered the opinion of the Court. On the twenty-first day of May, 1921, Samuel M. Trenary became a passenger on an automobile omnibus running from Baltimore to Frederick. When the automobile reached a point between Hilton Street and Beechwood Avenue on the Frederick Road, where a driveway from the property of Mr. Oscar Coblentz crosses the tracks of the United Railways and Electric Company, and connects with the travelled part of the Frederick Road, it stopped, in accordance with a notice previously given the driver, to take on two passengers, Miss Coblentz and Miss Hood, who were going to Frederick, and ¹¹⁵ the driver asked Mr. Trenary to. get out of the automobile and take another seat, in order that the two ladies might sit together. He complied with the request, and took a position between the automobile and the railway tracks., but so near the tracks that an east bound car of the appellee, running over these tracks, struck him, and so badly injured him that he died on June 31st, 1921.

Thereafter, on July 29th of the same year, this suit was. brought for the use of Evelyn G. Trenary, his widow, and Suzanna J. Trenary, his infant daughter, on the theory that his injuries, and consequent death, were occasioned by the negligence of the appellee. The case was tried in the Court of Common Pleas of Baltimore City, and, at the conclusion of the plaintiff’s testimony, that court directed a verdict for the defendant, on these grounds, namely, (1) that there was. no legally sufficient evidence to show that the accident was caused by any negligent act of the defendant, (2) that the uneontradicted evidence showed that the negligence of the deceased directly contributed to the happening of the accident which resulted in his death, and (3) that his own negligence was the direct cause of his injuries. Judgment was in due course entered upon the verdict rendered in obedience to that direction, and from that judgment the present appeal was taken. The record contains but- one exception, which relates to the court’s rulings on the prayers, which submitted the propositions to which we have referred, which formed the basis of the court’s action.

Since those propositions rest upon the theory that there was no evidence in the case legally sufficient to show that the accident complained of was due to any negligence of the defendant, but that it does show conclusively that it wa.s caused by the negligence of the deceased, it is necessary, in disposing of the questions thus submitted, to refer to. all material facts bearing upon the accident. The Frederick Road was originally the Baltimore and Fredericktown Turnpike Road, and by several grants from the turnpike company, the defendant acquired the right “to ¹¹⁶ lay open ‘T’ rail track construction” on that part of it on which the accident occurred. In the exercise of the rights thus obtained, the defendant located and constructed a double “T” rail trade on the northern part of the Frederick Road at that point. That part of the road lying to the south of the tracks has been improved by the State Roads Commission, which acquired the interest of the turnpike company in the turnpike in 1914, subject to the rights of the defendant therein, and is used as a State road for pedestrian, vehicular and general travel.

At the place where the automobile stopped, the general direction of the road is east and west. North of it, and abutting on the defendant’s right of way, is the property of Mr. Ooblentz. Access from Mr. Ooblentz’s residence to that part of the Frederick Road used for general traffic is furnished by a macadamized driveway, which crosses the tracks of the defendant, and which was constructed by it. The surface of that driveway is nearly level with the top of the railsi, and slopes from the southernmost rail to its junction with the main road south of the tracks, at which point it is about twenty-five feet wide.

The automobile in which Mr. Trenary was a passenger reached that driveway between twenty and thirty minutes after eight o’clock in the morning, and there, in response to a request of Mrs. Ooblentz, it stopped to receive the two passengers (Miss Ooblentz and Miss Hood, who were staying at her home), at a distance variously estimated at from five to seven feet from the south rail of the east bound track. As the automobile came to a stop Mrs. Oscar Ooblentz, Miss Naomi Ooblentz and Miss Hood approached it from the Ooblentz property. As they approached, Mr. Trenary, at the request of the chauffeur, who- was sitting in.the rear of the automobile, vacated his seat in order to make room for Miss Ooblentz and Miss Hood, and went out of the rear door of the automobile. The chauffeur had in the meantime left the machine to get the baggage of his prospective passengers, and after he had deposited it in the car he turned to help ¹¹⁷ them into the machine.

As the three ladies approached the ear tracks, two cars were approaching the crossing over the defendant’s tracks, one going east and the other going west. The west hound ear was so near that they waited for it to pass. At that timo the east hound car, which Mrs. Coblentz saw, was about 300 feet away. They crossed the track and, as Mrs. Coblentz took a position betwen the car trades and the automobile, she noticed that the east bound car was about ninety or ninety-two feet away.

At that time there were grouped between the automobile and the car tracks five persons, Mrs. Coblentz, Miss Coblentz, Miss Hood, the chauffeur, and Mr. Trenary. What their respective positions were the record fails to definitely disclose, although it does show that the two ladies were in the act of entering the automobile, the chauffeur was assisting them, Mrs. Coblentz was standing near the track, and somewhere to the east of her and near the track was Mr. Trenary. The chauffeur had helped Miss Coblentz into the automobile and was in the act of helping Miss Hood in, when the east hound car grazed Mrs. Coblentz and struck Mr. Trenary, indicting upon him the injuries which resulted in his death. Miss Coblentz was not aware of the approach of the east bound car until after’ it struck Trenary, the chauffeur had no recollection of having seen it until after1 the accident, Mrs. Coblentz saw it when it was about ninety feet away but, at the instant it passed, her attention was drawn to what was going' on in the automobile and she failed to realize the danger of her position until after it had passed.

Of the nine eye witnesses of the accident, one testified that on a former occasion he had said that he had a faint recollection of having heard a hell, another was not asked whether he heard a hell, while the other seven testified that they heard no bell or other warning given of the approach of the car, although all of them appear to have been near enough to have heard such warnings had they been given, seven being either in or near the automobile, one in the east hound car, and one about ninety yards away when the accident occurred. ¹¹⁸ The speed of the car was variously described by the several witnesses who observed its approach as “fast,” “pretty fast,” “a right fair speed,” “fifteen miles an hour,” one of them referred to its passing him as a “whiz by,” and another said he had never seen a ear run so fast in his life. There was also testimony that it had a swaying, swerving, rocking motion as it approached the crossing and that it did not reduce its speed until it struck Trenary, when it stopped in about two car lengths. The exact position which Mr. Trenary occupied when he was struck is not shown by the testimony. He was east of Mrs. Coblentz, who was' grazed by it, and near enough to the tracks to be hit by the car, and one witness said he had stepped aside to let the ladies “board” the automobile, and a state<ment of the same witness was offered in evidence by the defendant, in which he said that Trenary seemed to he coming towards the automobile and looking in the direction he was going.

There was also some difference in the testimony as to what part of the car struck the deceased, hut as that circumstance is immaterial, it is needless to refer in detail to the evidence relating to- it. These are the essential facts .directly established by the evidence in the case, or fairly inferable from it, and, in accordance with the rule SO' frequently stated by this Court, that where a directed Verdict for the defendant is sought, the truth of the plaintiff’s evidence, together with such inferences as may he fairly drawn therefrom tending to support his cause of action, will be assumed, we have treated all facts appearing in the evidence which tended to support the plaintiff’s case as established for the purposes of the question before ns. These facts, together with the defendant’s granted prayers, present for our consideration these questions, (1) was the defendant in the operation of its cars on the tracks referred to obliged to use ordinary care to avoid injury to persons in ¹¹⁹ the lawful uso of the highway adjacent thereto, (2) if it did owe such a duty, are the facts, in this case legally sufficient to support an inference that the injuries causing the death of Mr. Tremary resulted from any breach of that duty, (3) did any negligence of the deceased directly contribute to the happening of the accident, and (4) if the deceased was guilty of negligence, could the driver of the defendant’s ear, by the exercise of ordinary care, have discovered the danger to which it exposed him and could it thereafter have avoided the consequence of such negligence? The first question depends to some extent upon the character of the roadway within the outlines of which the defendant’s tracks are laid, and upon the nature and extent ofj its right to construct and maintain such tracks', and to operate its cars thereover.

The Frederick Road was originally laid out, dedicated, constructed, and used as a public highway, under the authority conferred by the Legislature of Maryland upon the president, managers and company of the Eredericktown Turnpike Road, and as such was impressed with all the characteristics and incidents of a, common highway. Peddicord v. Balto., C. & E. M. R. R. Co., 34 Md. 463 . On October 1st, 1895, the turnpike company granted to the defendant’s, predecessors in title “a perpetual and absolute right to construct and maintain double T-rail tracks on the road and also double T-rail tracks from Melvin Avenue to. the present terminus of the road, a distance of 3,200 feet,” and “The United Railways and Electric Company of Baltimore acquired the right to lay open T-rail construction on this, stretch, by grants from the president, managers and company of the Baltimore and Eredericktown Turnpike Road, dated March 11, 1861, June 18, 1895, October 1, 1895, and March 15, 1899, for a valuable consideration.” The construction and operation of a railway under these grants over a part of the land lying within the outlines, of the turnpike right, of way was not in substitution for, but in furtherance of, the use of the road as a public highway to which it had been dedicated. Peddi ¹²⁰ cord v. Balto., C. & E. M. R. Co., supra; Green v. City & Suburban R. Co., 78 Md. 294 .

Both the railway and the roadway for ordinary traffic are within the outlines of a public highway, and the users of each owe to the users of the other the duty of using* ordinary care to avoid injury to them by the manner in which they exercise their respective rights to pass to and fro thereover. And while the character of the construction necessary to the operation of its railway system by the defendant in rural and suburban sections makes 'it impracticable to use that part of the road occupied by its trades for general traffic, that fact does not relieve it of the obligation of using ordinary care in the operation of its railway system, to avoid injury .to persons in the lawful use of that part of the road used for general traffic. In 3 Elliott on Railroads, par. 1443, that principle is stated in these words: “As a general rule, a railroad company has the exclusive right to use its own track, and one who goes upon it, without an invitation or license from the company, is a trespasser. But this rule does not apply at highway ■crossings, nor, under ordinary circumstances, where the track is laid longitudinally upon the surface of a street, whether it be that of a commercial or street railroad company.

The public, exercising due care, still have a right to use the street. And soi, the railroad company, likewise exercising due care, has also the right to use that portion of the street upon which its track is laid. Their rights are, in most respects, mutual, reciprocal and equal, neither being superior or paramount to the other, except that, as the company cannot so readily stop its trains or cars and is confined to its track, it has the right of way of passage thereon, and persons who are upon the track must leave it and give way until the train or car has passed,” and that appears' to us to bo a fair and sound statement of the rule. The second, third and fourth questions all depend upon the application of related principles, and will be considered together.

And in connection with them, it may be said, at ¹²¹ the outset, that the evidence in the ease does tend to show that the deceased was negligent. ETo other conclusion is possible from facts, that show that he stood so near to the railway tracks that he was struck by a street