Upton v. United Railways & Electric Co.

Pattison, J., delivered the opinion of the Court: The appellant instituted suit in the Superior Court of Baltimore City against the appellee to recover for personal injuries sustained by him caused hy the alleged negligence of the defendant. The declaration alleges “That on or about the first day of October, 1918, while the plaintiff was riding in his automobile * * * on .First Avenue, a public highway in Brooklyn, Maryland, the defendant * * * negligently and carelessly caused one of its street cars to be run violently into and against said automobile, causing the plaintiff to bo thrown with great force from said automobile to the-street,” as a result of which “the plaintiff became seriously and permanently injured * * * and his said automobile became broken and damaged.” The case was tried by a jury and at the conclusion of the-plaintiff’s evidence the defendant offered two prayers, asking that the case be taken from the jury. The first because of a. want of evidence legally sufficient to entitle the plaintiff to i*ecover, and the second because of tbe contributory negligence of the driver of tbe automobile. Both of these prayers were granted and a verdict was rendered in favor of the defendant, upon which a judgment was thereafter entered.

It .is-from that judgment this appeal is taken. ²¹⁴ In reviewing the rulings of the Court in granting said prayers, it will be necessary for us to go somewhat fully into the evidence offered. The plaintiff, with fourteen others, on the afternoon or evening mentioned in the declaration, had ridden in his automobile truck from his home on the Severn River, near Annapolis, to Brooklyn, until recently a part of Anne Arundel County, but now within the limits of Baltimore City, to attend a church fair. After the fair was over, the plaintiff, with his party, started home. His son, Thomas L. Upton, who was driving the truck, was seated upon the front seat with Eerris Griffith, a son-in-law of the plaintiff.

The other members of the party were seated upon boards placed across the truck. The plaintiff was on the left side of the truck upon the last seat back. The body of the truck was three feet wide and ten feet long and the entire length of the truck was 16% feet. Its body extended in the rear four feet beyond the rear wheels.

After leaving the church about 9.30 P. M., they proceeded northward on Eourth ¡Street, which it seemsi wasi a dirt road, and as the witness expressed it, rough at the crossing. Eourth Street is crossed by Patapsco Avenue. On the north side of it are the two tracks of the defendant’s road, constructed of “T” rails and cross ties with stone ballast between them, and are of the same construction as the tracks of an ordinary steam railroad. There is no travel-way or road upon the south side of the tracks although, asi stated by one of the witnesses, there is a strip of land on that side sufficiently •wide for a road, but it has never been graded and used as such, and the tracks, owing to their construction, cannot be crossed by any vehicle of travel at any point, except at the street crossing.

T. L. Upton, chauffeur of the truck, testified that as they approached Patapsco Avenue and when the front wheels of the truck were about to enter the gutter on the south side of the avenue, he saw the light of a car more than a block away approaching from the west on the eastbound track, the track ²¹⁵ first to be crossed by them. The distance, he siaid, from the gutter, in which his wheels had entered or were about to enter, when he first saw the light of the car, to the south rail of the eastbound track, was ten or fifteen feet. The accident is described by this witness as follows: “As I approached I was just ready to go into this gutter with the front wheels and I looks and sees I had plenty of room, the ear was a long distance down, a fraction over a. block, and I had plenty of room and of time and I didn’t see nothing out of the way at all, but I knew I had to go slow at the same time on account of the rough condition of the road and the crossing; so I continued going and as I crossed I had just turned my wheel slightly to the left to come into, the road, the road goes direct opposite the oar line, the north side of the car line and I had turned my wheel a fraction to make the turn when it struck me; I had no idea it was going to strike; of course, I stopped right away.” The wheels of the truck, both front and rear, had passed’ over the track upon which the car was moving, leaving only about nine inches of the body of the truck still upon the track, when the collision occurred. The blow, he says, was a hard one.

The car was at the time coming up grade, but there was nothing; between them to obstruct the view. Upon cross-examination he stated that when he saw the car “it seemed to be going pretty fast.” “Q. You thought you could get across there before the ear got there? A. There was all the room in the world. Q¡.

You thought you would' get across before thei car got there? A. I didn’t think it. When I see there was plenty of room there was no mistake about it when he wasi all of that distance away, all the room, for anybody to cross; of course, I was not going to stand and wait; I didn’t know how long I might, have to stand, I seen there was plenty of room and I kept on going along over the rough crossing. I had plenty of time and room; how the car got there, I don’t know, but it