United Railways & Electric Co. v. Biedler

Schmucker, J., delivered the opinion of the Court. The question presented by this case is a narrow one. The appeal is from a judgment recovered by the appellee against the appellant in the Superior Court of Baltimore City for damages for injuries caused by a collision between a carriage in which he was riding and one of the appellants electric cars. It is admitted in the record and on the briefs of counsel that there is evidence in the case legally sufficieut to establish the existence of negligence on the part of the defendant, in running the car at too high a speed, which directly contributed to the plaintiff’s injury.

The plaintiff was therefore entitled to recover in the case unless he was debarred therefrom by contributory negligence on his part or on the part of some one for whose negligence he was responsible. The single question presented for our determination is whether the record contains evidence legally sufficient to prove the existence of any such contributory negligence. The material facts as they appear from the record are as follows : On May 25th, 1901, the appellee upon the invitation of his brother, Dr. H. H. Biedler, rode with the latter in his buggy upon his round of professional visits in Baltimore City. The doctor was an experienced driver and quite familiar with the locality of the accident and his horse was a quiet one.

The horse and buggy which he drove were his own property and the appellee was merely his guest and had nothing whatever to do with the management of the horse or vehicle. At the time of the collision with the car the buggy was going west along the north side of Twenty-third street toward St. Paul street. The doctor, who was driving, sat on the right side of the buggy and the appellee on the left side. As they approached St. Paul street, on which the cars of the appellant run, and when they were about fifteen feet from the building line of its east side the doctor checked his horse and leaned forward beyond the side curtain of the buggy to see, as he ⁵⁷² testified, if any car were in sight but he neither saw nor heard any in either direction.

From the point at which he thus looked he could have seen a car approaching from the north on the south-bound track on St. Paul street about forty or fifty feet before it reached the north side of Twenty-third street-Not seeing or hearing any car he gave his horse a free rein and started to cross St. Paul street, but before he succeeded in getting across the horse and buggy were struck by a car, running very rapidly southerly on the south-bound track, and were dragged to a point about twenty-feet south of Twenty-third street and the appellee was injured. The doctor, the appellee, and an eye witness of the collision, who was standing at the corner of the two streets when it occurred, all testified that they heard no gong ring on the approaching car, although each of them thought he would have heard it if it had been rung. The appellee further testified that he saw his brother as they neared St. Paul street, check his horse and lean forward in his buggy and look out for the cars before he started'to cross, and further that the first warning they had of the approach of the car was a cry from some one to “look out” and that the crash of the collision came almost simultaneously with the cry. Another eye witness of the collision who at the time was standing on the west side of St. Paul street a short distance north of-the corner testified that he heal'd the gong ring on the car when it was about fifty feet north of Twenty-third street and that the buggy was then in sight coming out of Twenty-third street, and that the motorman was turning the brake endeavoring to stop the car, but did not succeed in doing so until it had reached the steps . of the second house south of Twenty-third street.

After the evidence was all in the appellee, as plaintiff, offered four, and the defendant offered thirteen prayers. The Court granted all of the plaintiff’s prayers and eight of the defendants and rejected its remaining five prayers. The plaintiff’s third prayer which took the defense of contributory negligence on the part of the plaintiff out of the case, presents the ⁵⁷³ real issue in controversy and it formed the basis of the entire argument before this Court. That prayer is as follows: The Court at the plaintiff’s request instructs the jury that if they find the facts set forth in the plaintiff’s first prayer, and further find that at the time of the accident therein referred to, the plaintiff w'as an invited guest in said buggy, and that he exercised no control over the driving and the management of the same, but that the said buggy and horse drawing the same was owned by the witness, Dr. H. H. Biedler, and that the said Dr. Biedler was driving and controlling said buggy, that even if they find that the said Dr. Biedler was guilty of negligence in the manner in which he managed and drove said horse and buggy, which contributed to the happening of the accident, that as a matter of law the negligence of Dr. Biedler cannot be imputed to the plaintiff and forms no