Lake Roland Elevated Railway Co. v. McKewen

Contributory Negligence — Withdrawing Question from the Jury— Right to use of Streets. When in an action to recover damages for an injury alleged to have been, caused by the defendant’s negligence, the defendant contends that the injury was caused by the plaintiff’s contributory negligence, the question should not be withdrawn from the consideration of the jury unless the conduct of the plaintiff, relied on as amounting in law to contributory negligence, is established by clear and uncontradicted evidence. Although the plaintiff in this case was guilty of contributory negligence in attempting to drive across the tracks of the defendant, an electric railway company, without slacking his speed and looking in both directions as soon as he was able to do so, in order to see if a car was approaching from either direction, yet, if the motorman of the car could have seen that the plaintiff was about to cross in front in a position of danger, and could by the exercise of reasonable care have avoided the injury, then the defendant is liable. A street car has not a right of way on its tracks paramount to that of an ordinary vehicle. Neither has a right superior to that of the other, but each must exercise its right to use the street with due regard to the rights of the other.

Appeal from the Superior Court of Baltimore City. This was an action to recover damages for injuries to plaintiff’s person and property alleged to have been caused by defendant’s negligence. The evidence showed that the plaintiff, driving west, in the day time, on Chase street, in Baltimore City, attempted to cross the tracks of the defendant,' an electric railway company, on Guilford avenue, at the intersection of Chase street. The elevated portion of the railway begins about seventy-five feet south of Chase street, on Guilford avenue, and there is a down grade from that structure to Chase street. Plaintiff was driving a buggy, with the top lowered, at a slow trot, and upon arriving at Guilford avenue he turned his head south, to the left, to see if a car was coming down the elevated track, and then, hearing a rumbling noise, he looked quickly to his right and saw a" car of the defendant coming rapidly towards him from the north. He endeavored to pull his horse out of the way, but the car struck the horse, cutting off one of his feet, and the plaintiff was thrown out of the vehicle and injured. Plaintiff did not lower his speed upon approaching the tracks, and did not look north, to his - right, until •after he heard the noise of the approaching car, when he was on the tracks. Had the plaintiff looked to the' north on reaching the building line of Guilford avenue, he would have had an unobstructed view of the railway for two blocks, and could have seen the car. The evidence on the part of the plaintiff was to the effect that no gong was sounded on the car as it approached Chase street, and that it was running at a much greater speed than that permitted by the city ordinances. But this ' was contradicted by the defendant’s witnesses, who also testified that the plaintiff was driving rapidly and ran into the car. The defendant offered the following prayers: Defendant's ist Prayer. — That there is no legally sufficient evidence in the case from which the jury can find that the injury complained of resulted from the negligence of the defendant or its servants, and the verdict of the jury must therefore be for the defendant. (Rejected.) Defendant's 2nd Prayer. — That it appears from the uncontradicted evidence in the cause that the plaintiff, by his own negligence, directly contributed to the happening of the injury complained of, and the verdict of the jury must therefore be for the defendant. (Rejected.) Defendant's 3rd Prayer. — The defendant prays the Court to instruct the jury that if they believe from the evidence that the plaintiff could have avoided the happening of the injury complained of by the exercise of.ordinary care on his-part, then their verdict must be for the defendant. (Rejected.) Defendant's ¿¡.th Prayer. — The defendant prays the Court, to instruct the jury that if they believe from' the evidence that if the plaintiff could have avoided the happening of the injury complained of by the exercise of ordinary care on his part, then their verdict must be for the defendant, even though they should further find that the defendant’s agent was guilty of negligence. (Rejected.) Defendant's $th Prayer. — The defendant prays the Court: to instruct the jury that if they shall believe from the evidence that the accident was directly caused by the concurrent negligence of the plaintiff and the said defendant, and. that it could have been avoided by due and proper care on the part of either said plaintiff or said defendant, then their verdict must be for the defendant, without regard to whose negligence was greater. (Rejected.) Defendant's 6th Prayer. — The defendant prays the Court to instruct the jury that if they shall find from the evidence that the plaintiff was in the habit of crossing the tracks of the defendant at the corner of Guilford avenue and Chase street, and knew that the electric cars of the defendant were passing and repassing on said tracks at short intervals and at six miles an hour, then it was the-duty of the plaintiff, at the time of the happening of the injury complained of, to look in both directions, up and down the street, to observe the movements of the cars of the defendant; and if the jury shall find that the plaintiff did not so look, and that the injury would not have hap- ' pened if he had so looked, then their verdict must be for the defendant. (Rejected.) Defendant's 8th Prayer. — The defendant prays the Court to instruct the jury that if they shall find from the evidence that the motorman of the defendant saw the plaintiff driving slowly along Chase street, approaching the track upon which the defendant’s car was running, seated in an open buggy, then the motorman had the legal right to assume that the plaintiff saw the approach of the defendant’s car, and that he would not attempt to cross the track in front of the defendant’s car, but would stop and allow the defendant’s car to pass. (Rejected.) Defendant's gth Prayer. — The defendant prays the Court to instruct the jury that it is the duty of a person crossing an electric street railway, on a city street, to look in both directions to observe whether a car is approaching before driving upon the track, and a failure to do so is negligence per se, and the facts, if the jury shall find them as facts, that the defendant’s car was traveling at a rate of speed not authorized by law, or that the motorman was not ringing his gong, do not excuse the plaintiff from the duty of looking in both directions. (Rejected.) Defendants ioth Prayer. — The defendant prays the Court to instruct the jury that a street car has a right of way on that portion of the street upon which alone it can travel, paramount to that of ordinary vehicles. (Rejected.) Defendants nth Prayer. — The defendant prays the Court to instruct the jury that the burden of proof is upon the plaintiff to show that the motorman of the defendant did not use reasonáble care to avoid the consequences of the negligence of the plaintiff. (Granted.) The Court below (Ritchie, J.), granted the i ith prayer of the defendant and rejected all of its other prayers, and also granted the following prayer of the plaintiff: Plaintiff's fth Prayer. — That if the jury shall find a verdict for the plaintiff, in estimating the damages they are to consider the physical condition of the plaintiff before the injury complained of as compared with his present condition in consequence of said injury, and whether the said injury is in its nature permanent, and how far it is calculated to disable him from engaging in those employments and pursuits for which, in the absence of such injury, he would be qualified, and also the physical and mental suffering to which he was subjected by reason of the said injury, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injury which he has sustained, and also the value of the horse driven by said plaintiff at the time of the accident, and any damage to his buggy and harness due to the said accident. The Court then instructed the jury as follows: Court's Instruction. — “ The Court instructs the jury that the plaintiff, being familiar with the crossing of defendant’s electric road at the comer of Chase and North streets, and approaching the same on Chase street from the east, in a buggy with the top lowered, at the rate of about four miles an hour, was guilty of contributory negligence in attempting to cross the tracks of said road without lowering his rate of speed and without looking to the north, and without paying any attention whatever to the possibility of the approach of a car from that direction, or making any inquiry or effort to ascertain whether or not a car was approaching from said quarter, until his horse was upon the second or westerly track, it appearing that the plaintiff, had he looked to the north when he reached the east building line of North street, would have had an unobstructed view of the railroad for two blocks, and could have seen the car in question, and that he therefore is not entitled to recover, unless the jury believe from the evidence that the motorman of the car in question] after he saw, or by the exercise of due care might have seen that the plaintiff was approaching the tracks and was apparently about to cross in front of his car, and that the attempt to do so would be dangerous to the plaintiff, might still, by the exercise of reasonable care in the management of said car, have avoided the collision, but failed to exercise said care.” The jury rendered a verdict for the plaintiff for $200, and from the judgment thereon the defendant appealed.