Winter v. United Railways & Electric Co.

Schmucker, J., delivered the opinion of the Court. The appellant’s horse and wagon were injured by a collision with a moving street car of the appellee company. He sued the company in the Baltimore City Court for damages resulting from the injury, alleging that it had been caused by the negligence of the persons in charge of the car. Under an instruction of the Court below,.that from the uncontradicted evidence the driver of the wagon was guilty of contributory negligence at the time of the accident, the jury rendered a verdict for the defendant.

The present appeal was taken from the judgment entered on that verdict. There is but one exception in the record, and that was taken to the action of the Court at the close of the case in rejecting the plaintiff’s prayers and granting the defendant’s prayer withdrawing the case from the jury. The primary issue therefore presented by the appeal is whether it appears from the uncontradicted evidence that the driver of the wagon was guilty of negligence directly contributing to the occurrence of the accident. Turning to the record, we find that the following facts appear from such evidence.

The collision occurred at the the intersection of Baltimore and St. Paul streets, in Baltimore City, at about twenty minutes after seven o’clock on the morning of Sunday, August 22nd, 1909. At that time there is ordinarily little or no traffic on the street and the view from one square to another is clear. Baltimore street runs east and west, is 66 feet wide and contains thé double tracks of the appellee’s street railway. St. Paul street runs northerly from Baltimore street, and is also 66 feet wide. ' Light street runs southerly from Baltimore street, forming a continuous' street with’ St. Paul street, intersecting Baltimore street at right angles.

There is a descending grade on St. Paul street going south toward Baltimore street. ⁷¹ On the morning of the accident' the appellant’s driver, L, H. Pettus, was driving his horse and wagon south, along the. west side of St. Paul street toward Baltimore street, on the way to the Light street wharf to deliver a load of newspapers to a departing steamboat. As he carné to the Baltimore street crossing he looked east and west on that street for approaching cars and saw a coming west-bound car. What then occurred he states as follows: “When I seen the car coming west I slowed up and he passed, and when he got to the International Trust Company, west, I seen there was no car coming east—that is, I could not see it; if it was it must have been behind.” (Witness was here interrupted by plaintiff’s counsel, but, being directed by the Court to proceed, he further said) : “When I started to pass and got to the gutter I seen the Madison avenue car about to overtake me. If I had went in front of the car he would have hit me full in the face, and may be killed myself - and the horse and smashed the wagon; but I seen the motorman was not stopping the car; he was going at full speed; and I tried then to pass behind, and when he caught me in the side and knocked the horse down and done injuries to the wagon and harness and horse.” On his cross-examination he admitted that he had run into the side of the car at the distance, as he said, of about four feet from its front.

The witness further said that he came down St. Paul street toward Baltimore street at a dog trot, but when he reached the gutter on the north side of Baltimore street he slowed down “to pretty near a walk”. He also said that when he first saw the east-bound Madison avenue car, with which the wagon collided, it was almost opposite him on the south track running at a high rate of speed, and that at that time the front wheel of his wagon was about in the gutter on the north side of the street and the head of the horse was in the west-bound track. When asked by the Court why he did not remain where he was until the car passed him he replied that she eould not; that the space was too short; that “the ⁷² weight of the wagon would have pulled the wheels out of the gutter and throwed the wagon ahead.” He did not, in his answer to the Court’s questions, say that he made any effort to remain where he was,