United Railways & Electric Co. v. Kolken

Thomas, J., delivered the opinion of the Court. This appeal is from a judgment recovered by the plaintiff in the Court below for injuries alleged to have been caused ¹⁶⁶ by the negligence of the employees of the defendant, the United Eailways and Electric Company of Baltimore, and the only exception in the record is to the ruling of that Court granting the plaintiff’s prayers and rejecting the first, second, fifth, sixth, seventh, eighth, ninth, tenth and eleventh prayers of the defendant. The Eeporter is requested to set out the prayers in his report of the case. The accident which resulted in the injury complained of occurred between six and seven o’clock in the morning, on the 5th of March, 1909, at the crossing of Charles and ILill streets, in Baltimore City.

There are two railway tracks on Charles street, which runs north and south, one called the west or southbound track, and the other the east or northbound. One square north of Hill street is Lee street, and between Hill and Lee streets there is a narrow street which ends at Charles street, called York street. The distance betweén the south side of Lee street and the north side of Hill street is three hundred and sixty-six feet, and it is about one hundred and fifty feet from the north side of York street to the crossing from the northwest comer to the northeast corner of Charles and Hill streets. At this crossing the west or southbound track is twelve feet from the ctirb.

The plaintiff, Eebecca Kolken, who lived on Hill street, east of Charles street, states that on the 'morning of the accident she left her home at No. 30 Hill street and went across Charles street to Berman’s grocery store, on the northwest corner of Charles and Hill streets, to buy her breakfast; that as she was returning home, carrying a bottle of milk and a small dish of cream, just as she was about to setp from the pavement to the crossing she looked up Charles street and1 saw a oar coming south; that the car was then between Lee and York streets, nearer to Lee street, and was “going slow;” that seeing that the car was a long distance away, and that the motorman had an unobstructed view of the crossing, she started across the street, and that as she was crossing the ¹⁶⁷ tracks the ear struck her and threw her on the fender. She further testified that she did not hear a hell, and on cross-examination stated that after seeing the car, as she started across the street, she did not look again because when she saw it the car was a long distance away and the motorman could see her. A number of the plaintiff’s witnesses who saw the accident testified that as the plaintiff started across the street they saw the car above or about York street; that there was nothing on the street to obstruct the motorman’s view of the crossing; that the speed of the car was increased as it passed York street, and that it was going rapidly or at full speed when it reached the crossing;' that as the car approached the crossing the motorman was looking to the east at some girls' on the east side of Charles street, and that as he did not ring the hell or check the speed of the car until it reached the crossing and struck the plaintiff. Other evidence in the case shows that the motorman did not succeed in stopping the car until it had nearly reached the opposite side of Hill street; that the plaintiff was carried some distance on the fender and was finally thrown to the east side of the ear, and that one of her arms was so badly crushed that it had to he amputated just below the shoulder.

The motorman in charge of the car at the time of the accident was not present at the trial in the Court below, hut the conductor testified that “from the time it left Lee street” the car “was going between six and seven miles an hour;” that-the motorman was ringing his hell as he approached the crossing, and that “as he drew up to the corner he reversed the car, putting down brakes.” ■ Other witnesses for the defendant also testified that the car was moving at moderate speed, and that they heard the hell before the car got to the crossing. By its first and second prayers the defendant sought to have the case withdrawn from the jury: first, because there was no evidence legally sufficient to entitle the plaintiff to recover; and, second, because she was guilty of contributory ¹⁶⁸ negligence, and by the other rejected prayers the Court was asked to instruct the jury that if they found that the plaintiff was guilty of contributory negligence she was not entitled to recover. All of these prayers, in effect, entirely ignore the evidence adduced by the plaintiff to show that the motorman had a clear view of the crossing; that he was not looking ahead; that he did not ring his bell, and that the car was running at full speed when it reached the crossing and struck the plaintiff. It is the duty of those in charge of a car to keep a sharp lookout as they approach a street crossing, and to slaken the speed of the car sufficiently to enable them to have it under control, so as to avoid injuring those who may be crossing the street, and the evidence adduced by the plaintiff tended to show not only that the defendant was negligent in the management of its car, but that the motorman saw, or by the exercise of proper care could have seen the plaintiff in time to have stopped the car before it struck her.

Under such circumstances it would have been error to have taken the case from the jury upon either of the grounds stated in the first and second prayers, or to have instructed the jury that if they found' that the plaintiff was negligent she was not entitled to recover, for even if the plaintiff was guilty of contributory negligence in attempting, under the circumstances, to cross the street in front of the approaching car, she was still entitled to recover if the motorman could, by the exercise of due care, have avoided the accident, after he saw, or by the exercise of proper care, might have seen the plaintiff as she was about to cross the tracks. This is the rule that has been repeatedly recognized by this Court as applicable to cases like the one at bar. Lake Roland Co. v. McKewen, 80 Md. 593 ; Balto. Traction Co. v. Appel, 80 Md. 603; Consolidated Ry.

Co. v. Rifcowitz, 89 Md. 383 ; United