Strauss v. United Railways & Electric Co.

Page, J., delivered the opinion of the Court. This action was brought by the appellant to recover damages for injuries sustained by him resulting as is alleged, from the negligence of the appellee. The appellant is a physician, practicing his profession in the city of Baltimore. On the 6th of October, 1903, he boarded a car of the appellee, for transportation to his home.

It was a summer car with open sides, and seats running cross wise. He took the end seat of the second bench on the side of the car next to the sidewalk, where there was no bar along the side. Outside was a foot-board, as is usual in cars of that type. ⁴⁹⁸ He fell, or was thrown from the car and sustained the severe injuries for which he is now suing. The appellant at the time of the accident was forty-eight years of age, short of stature, and weighed two hundred and sixty-five pounds, but active and vigorous.

The account given by himself of the happening of the accident was as follows: He testified that it was approaching midnight when he became a passenger on the car, he took a seat at the end of the bench next to the sidewalk; after the car had passed Conway street he wished to signal the conductor to stop at Barre street, that-being the next crossing. “I turned around” he says, “sitting in my seat but the conductor did not recognize me, not seeing me, or looking at me-, I got up and beckoned to him and Whistled; as I did that, there was a sudden and unexpected and unusual lurch of the car, which threw .me off my balance; I managed to grab the upright handle bars as I sank, but this arm being somewhat twisted in consequence of the position I was in, I was soon forced to let go, &c.” That when he “got up and raised his hand,” the car had just passed Conway street, 340 feet from Barre, the next stopping place. That when he whistled, “almost simultaneously” the car gave a sudden lurch and threw him off his balance, and forward as he caught himself at the upright bars, and it threw him off his feet. That the lurch was a sudden increase of the speed of the car. The testimony of the witnesses as to the lurch of the car was conflicting; some of the witnesses did not perceive any sudden or unusual lurch of the car.

There was also conflict as to the appellant’s conduct. One witness for defendant, Rev. Mr. Stephens, said that the appellant “was apparently backing out of his seat” and another witness testifies that the appellant on the day following said—“he stepped on the foot-board while it was in motion, before they got to the corner.” Upon this testimony the Court instructed the jury that “as the uncontradicted evidence in the case shows that the accident was caused by the contributory negligence of the plaintiff, their verdict must be for the defendant,” and upon the propriety of granting this prayer, arises the only question presented by ⁴⁹⁹ this record. The prayer assumes the negligence of the appellee as one of the contributing causes of the accident, and therefore, the special matter for us to consider, is whether, upon the evidence contained in the record and substantially re-stated here, the case should have been submitted to the jury for its determination as to the alleged contributory negligence of the appellant. The law applicable to a case of this kind is clear; unless there is some prominent and decisive act, in regard to which there is no room for ordinary minds to differ, the case should not be withdrawn from the jury.

Winkelman and Brown’s case, 88 Md. 91 . And again when the nature of the act relied on to show contributory negligence can only be determined by considering all the circumstances attending the transaction, it is within the province of the jury to characterize it. Baker v. Md. Coal Co., 84 Md. 19 ; Cook v. St. Ry.