United Railways & Electric Co. of Baltimore v. Durham

Briscoe, J'., delivered the opinion of the Court. It is not necessary to determine all of the questions raised by the record on this appeal, because in the view we take of the case we are of opinion that the Court below committed an error in rejecting the defendant’s third prayer, which is as follows: The defendant prays the Court to instruct the jury that under the pleadings and evidence in this case there is no evidence legally sufficient to entitle the plaintiff: to recover and their verdict must be for the defendant. The suit was brought by the appellee against the United. Nailways and Electric Company of Baltimore City, a corporation, and the defendant, in the Court below, to recover damages for personal injuries received by him while driving his market wagon with a team of mules along Willow avenue, a public road in Baltimore county, near the city limits.

The plaintiff on the 15th of October, 1909, the night of the accident, ivas driving up Willow avenue to the York road in a covered wagon drawn by two mules, and it was in attempting to cross the railroad tracks at the intersection of Willow avenue, the terminal of the York road, and the turnpike that the accident occurred. At this point the York road runs north and south and Willow avenue enters it from the east, and the plaintiff at the time of the accident was coming west on Willow avenue. The plaintiff’s account of the accident, as stated in his testimony is as follows: “The last stop I made that evening ¹⁹⁴ .was at Mr. Long’s, on the York road, and just about the time I left there-1 asked him the time of the day, and he said it was ten minutes past seven; it was a dark night; so I came up Willow avenue, around up Willow avenue to the Yorlc mad, to- the ruilroad. When I first got to the railroad there was a car coming, going to Towson, ringing the bell; I stopped'; so did the car stop and let off some passenger», and when it started I looked down the track; it was about the time of the evening when the cars run a little thick.

I looked down the track and saw no cars coming down the track; I looked up the track and didn’t see any cars coming, and then I started across; when I pulled up on the first track I looked up the track again; I saw no car and I didn’t look any more until I got on this other track; I didn’t drive fast; I had a right heavy wagon and in the neighborhood of one thousand pounds in it; I saw the car about sis or eight feet from me before it struck me; that is the last thing I remember; when the car struck me I didn’t even feel the shock of the car or anything of the kind.” On cross-examination, he testified that he had traveled on the same road as on the evening of the accident for about twenty years and ever since he was eighteen years old, and that the car was six or eight feet from him when he first saw it. “Q. You kept looking to see whether the car was coming? A. No, I looked the first time, until I looked the second time then I saw the car was on me. Q. When you looked the second time the car was on you? A. Yes, sir.

Q. Then you looked — before you got on the northbound track and looked, did you? A. Yes, sir. Q. The next time you looked the car was on you? A. I was on the northbound track when I looked up the track, I saw the car was not coming down; • I didn’t see it when I looked the first time, but when I looked again the car was right on me about six or eight feet from me.” He further testified that the curtains of the wagon were down that he was driving in a slow walk and he supposed ¹⁹⁵ this obstructed the view, as it tore the curtain “right off when I went through.” There was evidence that one could see a long distance up the track, but if a car was coining up and one going down ahead of it, you could not see the car coming down.

There was also evidence to the effect that the headlight and all the lights inside of the southbound car were burning, but there was no light upon the wagon, driven by the plaintiff. The motorman testified, that he did not see the wagon and team until within thirty or forty feet of it and used every effort to stop the car and prevent the accident, when he discovered the situation of the plaintiff. The evidence as to the excessive speed of the car at the time of the accident, is not very definite, but unless the improper speed was the direct and proximate cause of the injury and that the injury would not have occurred but for the excessive speed there could be no recovery upon this ground. P. W. & B. R. R. v. Stebbing, 62 Md. 517 ; Hayes v. R. R. Co., 111 U. S. 228 B. & O. R. R. Co. v. State, 62 Md. 479 .

Upon the proof, we think, this is a clear case of contributory negligence, upon the part of the plaintiff, and there is nothing in the record, to take it out of the operation of the rules and principles established by this Court in Meidlings’ Case, 97 Md. 77 ; McNab’s Case, 94 Md. 728 ; Manfuso’s Case, 102 Md. 257 ; Hatcher’s Case, 103 Md. 78 ; Brehm Case, 114 Md. 302 ; Hickox Case, 104 Md. 659 , and Winter's Case, 115 Md. 69 . ( 80 Atl. Rep. 65 ). AA-Tiile the plaintiff in this case stopped his wagon about twenty-five or thirty feet from