United Railways & Electric Co. v. Fletcher

Schmucker, J., delivered the opinion of the .Court. This is an appeal from a judgment of the Baltimore City Court in favor of the appellee against the appellant for damages resulting from personal injuries. The plaintiff was injured, while standing on a public street near the car track, by coming in contact with the body of a conductor who was passing along the foot-board at the side of a moving open summer car. At the close of the plaintiff’s testimony in the Court below the defendant offered a prayer taking the case away from the jury for the want of evidence legally sufficient to entitle the plaintiff to recover.

The Court rejected the prayer and the defendant then introduced,its testimony.' At the close of the whole evidence the plaintiff offered four prayers and the defendant offered seven the first of which was a renewal of the prayer taking the case from the jury. The Court granted three of the plaintiff’s prayers, and rejected one of the plaintiff’s and all of the defendant’s prayers and granted two instructions of its own to the jury. It is unnecessary for us to review in detail the action of the learned Judge below on these prayers and instructions because, for reasons which we will state, we are of the opinion that he should have ⁵³⁵ granted the defendant’s prayer taking the case away from the jury for want of legally sufficient evidence to enable the plaintiff to recover. Three witnesses who were present at the happening of the accident testified in the case.

They were the plaintiff and two laborers who were at the time engaged with him in the service of the city water department in laying a water pipe. These witnesses agree that a long trench two or three feet wide at the top and about four feet deep had been dug by them in the street between the car track and the sidewalk and distant three feet from the nearest track. They had been engaged in digging this trench and laying a six-inch pipe therein during the entire day up to the time of the accident which occurred at about four o’clock in the afternoon. Cars had been passing the men engaged in the work at intervals throughout' the day and the workmen had stood in safety on the strip of ground between the trench and the tracks as the cars went by.

At the time of the accident the pipe had been laid and the workmen were engaged in filling up the trench. The several accounts given by the witnesses of the accident are substantially as follows. The plaintiff testified that he and the witness Burk were working on the side of the trench next to the track when as he says, “I saw the car was coming, and the car had rung up get out of my way and I was standing there, standing on the side of the ditch and if I had been let alone the car would have had plenty of room to pass me, the ditch was three feet from the railway track” * * * “I stepped aside to let the car pass me and as I did why I felt the blow from the conductor where his body struck me.” “I saw the conductor on the car I saw him come up the track and he passed Burk and just as he got to me he swung and when he swung himself he struck me and therefore I know it was the conductor.” lie also testified that although he saw the conductor on the foot-board of the approaching car he did not watch it as it was coming up because he was satisfied that he was out of its way. He said that he saw no difference between the rate of speed of this ⁵³⁶ car at the time when he was struck and that of the other cars which passed the place where he was working.

John Kelbaugh, one of the two laborers who testified for the plaintiff, did not see him actually struck, but corroborated his evidence as to the local conditions at the place of accident and said "the ditch was about three feet from the railroad track and there was plenty of room for any man to get out of the way of the car.” He also saw the conductor on the foot-board as