United Railways & Electric Co. v. Ward

⁶⁵⁵ Thomas, J., delivered the opinion of the Court. This appeal is from a judgment in favor of the plaintiff in an action to recover for injuries alleged to have been caused by the negligence of the appellant. During the trial in the Court below, the defendant reserved five exceptions, the first four of which relate to the rulings of the Court on the evidence, and the fifth is to the granting of the plaintiff’s third and fourth prayers and' plaintiff’s first and second prayers as modified, and to the rejection of the defendant’s first, second, third, fourth, fifth and seventh prayers, and the modification of its eleventh prayer. The main contention of the appellant is that there was , error in the rejection of its first, second, third, fourth and fifth prayers, by which the Court was asked to instruct the jury that the plaintiff was not entitled' to recover, first, because he was guilty of contributory negligence, and, second, because there was no evidence legally sufficient to show that the defendant was negligent.

In considering the questions raised by these prayers it will be necessary to review the evidence in the case, and to hear in. mind the well-established rule that the conduct relied on as constituting in law contributory negligence must be established by clear and uncontradicted' evidence, and “unless there is some prominent and decisive act, in regard to which there is no room for ordinary minds to differ,” the question of contributory negligence must be left to the jury; and that where “the nature of the act relied on to show contributory negligence can only be determined by considering all the circumstances attending the tranaetion, it is within the province of the jury to characterize it” (Strauss v. United Rys. Co., 101 Md. 199 ); and the further rule that greater care and caution is necessary to be exercised' in running a car across the streets or thoroughfares of a city than is required in crossing a highway in the open country. The appellee while driving along Walbrook avenue, one of the streets of Baltimore City, in attempting to cross the ⁶⁵⁶ tracks of the appellant company at the corner of Walhrook avenue and Liberty road, was struck by one of the appellant’s cars and was injured. There are two tracks on this line, both on the west 'side of Liberty road, one called the southbound and the other the northbound track, and where Walbrook avenue crosses Liberty road they are level with the surface of the street.

On the day of the accident the appellee was employed by Stewart and Company, and was engaged in delivering packages for his employers. He was driving an ordinary one-horse delivery wagon, and had with him at the time of the accident a young man named Thomas R. Robbins, who was assisting him in distributing the packages, and a small child whom he had picked up on his route. The appellee was sitting on the right side of the front seat of the wagon, with the child next to him, and Thomas R. Robbins was sitting on the left side of the same seat. The side and back curtains of the wagon were up, and as they approached the crossing at Walbrook avenue and Liberty road, driving along the south side of Walbrook avenue and going east, when about fifteen or twenty feet from the west side of Liberty road, according to the testimony of the appellee and Robbins, they both looked to the north to see if there was a car coming on the southbound track, and to the south to see if there was one coming on the northbound track and did not see or hear one, and at that point they could, by looking over a fence, see a car coming north from North avenue, the next street south, for three-quarters of a block.

The appellee further states that when the horse had about reached the west edge of the southbound track, which was the first track to be crossed, he looked again to the south, in the direction of Noi'th avenue, to see if a car was coming on the northbound track, at which point he could see as far as North avenue, and not seeing or hearing one he drove on in a walk, and that when the wagon was between the northbound and southbound tracks he saw a car rapidly approaching on the northbound track, about one hundred and fifty feet distant, and that the'motor man was ⁶⁵⁷ working the lever. In answer to the question, “Now, what effort, if any, did you make when you saw the car comb?g up at that point at this rapidity?” he said: “I tried to get out of his way, I saw he couldn’t clear it, and I tried to help him out, that was the only, thing I could do.” He stated further that he thought the car was going about forty miles an hour; that when he first saw the car approaching on the northbound track the wagon was between the northbound track and the southbound track, and the horse was on the northbound track; that seeing that the motorman could not stop the car he urged the horse on with the hope of clearing the track, but that the speed of the car seemed to increase after he saw it and until it struck him, and that when the wagon was struck it was on the northbound track. Thomas R. Robbins further testified that when you get within three feet of the southbound track, coining east on Walbrook avenue, you can see the east side of Liberty road as far as North avenue, but you cannot see the car tracks “because of the yards on 11th street, you only see the top of a car;” that after he looked, when about fifteen or twenty feet from the southbound track, and did not hear or see a car,- he turned to one side to get his packages ready, and that when he turned around again and looked up the horse was on the northbound track, and he saw a car about one hundred feet away coming north, from North avenue to Walbrook avenue; that it was coming as fast as it could come, “I guess about fourteen miles an hour;” that he had no idea how fast a car can go, but that “this car was going as fast as it could.” He stated further that “the motorman was in control of the car.” and that “he was turning off the brakes or turning them on, I don’t know which, in the excitement, because the next- minute I was thrown out of the wagon. That the car struck the right wheel in front, it struck the hub; it struck the hub and bent the axle and drove it about fifteen or twenty feet northerly.” There is also evidence tending to show that the distance from North avenue to Walbrook avenue is four hun ⁶⁵⁸ dred and twenty-eight feet; that the motorman of a car coming north on Liberty road can see a horse’s head on the west side of Liberty road at Walbrook evenne from a point five hundred and fifty feet distant, and for five hundred and fifty-eight feet he would have full view of anyone crossing Liberty road at Walbrook avenue; that Walbrook avenue and Liberty road' are much used thoroughfares within the city limits, and that on the accasion of the accident no signal or warning was given by those in charge of the car as it approached the crossing.

The appellant relies upon the cases of McNab v. United Rys. Co., 94 Md. 719 ; Meidling v. United Rys. Co., 97 Md. 73 ; Heying v. United Rys. Co., 100 Md. 281 , and Phillips v. W & R. Ry.

Co., 104 Md. 455 . In McNab’s Case the accident happened in the country, where the rate of speed at which the cars ran was from twenty to twenty-five miles an hour. “Plaintiff drove in her phaeton at a trot along the county road to the turnpike when, slowing down but not stopping, she looked to see if a car was coming from one direction on the track nearest her. Seeing no car on that track and hearing no gong sounded, plaintiff drove across the road and when her horse was in the space between the two tracks she saw a car forty feet distant approaching at a high rate of speed from the other direction. Her horse was gentle and accustomed to the cars and she was then in a place of safety.

Instead of stopping or backing she whipped up her horse and attempted to cross in front of the cars which struck the rear wheels of the carriage, throwing her out and causing an injury.” On cross-examination she was asked whether the horse .was afraid of the cars, and she answered: “Hot at all, and she is not afraid yet.” She was also asked: “You knew the cars could pass her without her being afraid ?” And she replied: “Yes, sir.” She was then asked the following question : “Then there was nothing so far as the mare’s nervousness was concerned, which would prevent you pulling her hack and letting the ear pass in front ?” and her answer was, ⁶⁵⁹ “Nothing at all, only I never hack if I can go forward.” Cínica Judge McSiiebky said in that case: “It is perfectly obvious from the plaintiff’s own testimony that when she saw the approaching car she was in a pláce of safety; that by staying for a moment where she then was she would not have incurred any risk of injury either from the car or from the frightening of her horse; that there was no reason whatever for her not stopping or not remaining in that place of safety, other than her indisposition to back if she could go forward; and that she deliberately went forward in the face of an imminent and apparent danger because she thought she could get across the south track before the car running on that track reached the point at which she was crossing. This was sheer recklessness.” In Meidling's Gase the deceased was driving after dark towards the tracks of a suburban electric railway. “The road lay through open fields, and the cars ran there at a high rate of speed. The view was unobstructed and the deceased saw the headlight of an approaching car but supposing that he could cross in time continued to drive on as before and a collision occurred which caused his death.” The Court there held that the contributory negligence of the deceased in thus attempting to cross in front of a rapidly approaching car which he clearly saw was such as to bar a recovery. In Heying’s Gase the “plaintiff, a woman, driving a wagon on a dark morning in midwinter, came to the tracks of defendant’s electric street railway.

She saw a car coming, but erroneously thinking there was time to cross, attempted to do so, and the wagon was struck by the car and plaintiff was injured. There was no evidence that the motorman could have stopped the ear, after perceiving plaintiff’s peril, in time to avoid the collision.” The Court held that the case was properly withdrawn from the jury because there was no evidence of negligence on the part of the defendant and there was evidence of contributory negligence. ⁶⁶⁰ In Phillipps Case the plaintiff was riding sidewise on horseback along the county road, on one side of which ran the tracks of an electric railway. In that case Judge McSherey said: “During the whole time he rode along the turnpike his back was towards the tracks, and when he turned at right angles to go over the crossing his back was towards the approaching car. ITe was facing Washington after turning.

If he then glanced to the right he looked away from the tracks; if he glanced to the left his line of vision was directly over and perpendicular to the tracks' at the crossing.. To have seen up the tracks towards Rockville, and therefore, towards the car which finally struck him, he would have been obliged to turn completely around on his horse and face in a direction precisely opposite to the one he occupied after he had turned his horse to cross the track. He does not say he did this, and unless he did so, it was not possible for him to see the oncoming car. * * * It was carelessness on the part of the appellant to venture on the tracks with his back towards the car which struck him; and his injury was undoubtedly due to his inability to see up the track in his rear, and his inability to see up the track was occasioned by his voluntary assumption of an attitude in riding which no prudent man would have taken in crossing a railway track. * * * In considering this question of contributory negligence it must be borne in mind that the injury did not occur on the streets of a city, but in the open country where a higher rate of speed in the movement of electric cars is permissible than is allowed along the more crowded thoroughfare of a town. More caution was, therefore, demanded of a person in crossing a track of an electric railway in the country than would have been necessary in the city.

The use of no greater caution in the open country than would have been requisite to constitute ordinary care and prudence in the city, would not have been due care and caution on the part of the individual in approaching and g’oing upon an electric railway crossing in the country. An act which would be prudent in the city might ⁶⁶¹ l)e glaringly negligent in the country; and, hence, the standard by which contributory negligence is to be measured in the two instances necessarily varies with the changed conditions existing in the two dissimilar localities.” The facts of these cases, as we have stated them above, clearly distinguish them from the case at bar. Here the plaintiff was driving along one of the thoroughfares of the city. Before attempting to cross the tracks of the appellant he looked twice to see if a