Baltimore City Pass. Ry. Co. v. Cooney

• Citation: 39 A. 859,87 Md. 261
• Parties: BALTIMORE CITY PASS. RY. CO. v. COONEY.
• Decision Date: 03 March 1898
• Court: Court of Appeals of Maryland

39 A. 859

87 Md. 261

BALTIMORE CITY PASS. RY. CO. v. COONEY.

Court of Appeals of Maryland

March 3, 1898

Appeal from court of common pleas.

Action by Daniel J. Cooney, infant, by his next friend, Sarah Cooney, against the Baltimore City Passenger Railway Company to recover for personal injuries sustained through defendant's negligence. From a judgment for plaintiff defendant appeals. Reversed.

Argued before MCSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, PAGE ROBERTS, BOYD, and PEARCE, JJ.

Arthur W. Machen and Wm. S. Bryan, Jr., for appellant. A. Leo Knott, J. Stonewall, and J. Healy, for appellee.

BOYD J.

This case is not unlike most suits for personal injuries, based on the alleged negligence of the defendant, in one respect, at least,--that there is a great conflict between the witnesses as to the particulars of the accident. It is not remarkable that persons present at an accident which results so seriously as that in this case should differ in their narrative of the details, but it is difficult to understand how they can vary as much as they do in this case. Seven apparently disinterested witnesses testified that the plaintiff was running along the side of the car that ran over him, and that he was attempting to ride on it by holding on to a ledge that projected from the side of the car, and resting his feet on the truck or some part of the running gear. Yet the plaintiff denied that, and swore he was standing in the center of the track with some other boys, with his back towards the east, the direction the car was coming from; that he "saw the boys make a break towards the north"; that he did not know what they were doing, but he tried to follow them, as he supposed he was in some danger, but stumbled and fell. One witness sustained him in most of his evidence, and another in some particulars. At the conclusion of the plaintiff's evidence, the defendant offered a prayer that there was no legally sufficient evidence of negligence on the part of the defendant, to entitle the plaintiff to recover, and also another that the plaintiff's negligence, as appeared from his testimony, had directly contributed to cause the injury, and the verdict must be for the defendant. In passing on those prayers, we are, of course, required to accept as true the evidence offered by the plaintiff, however much we might differ with the jury as to what would have been a proper verdict. If the weight of testimony in favor of the losing side be so decided as to satisfy the trial court that the jury acted from passion, prejudice, or some motive other than a desire to do full justice to the parties, then it is the duty of that court, on proper application, to grant a new trial, and this court cannot review its action; but when there is evidence legally sufficient to sustain the verdict reached, if the evidence bearing on that side of the controversy be accepted as true, then the court cannot refuse to submit the case to the consideration of the jury. We must therefore, in passing on those two prayers, determine whether the evidence offered on behalf of the plaintiff precluded him from having his case submitted to the jury, for the reasons assigned in them.

At the time of the accident, the plaintiff was 11 years of age. He was returning home from school, which was held on the corner of Bank and Broadway streets, in the city of Baltimore. The defendant had two railway tracks on Bank street, on which the cars were propelled by electricity, the overhead trolley system having been adopted on that line a few weeks before the accident. There was a valve in connection with the city waterworks in the middle of the eastbound track, near the center of Spring street as it crosses Bank street, and an employé of the city was engaged in putting in an iron plate, to use his language, "to represent a water stop." A number of boys going from school were attracted by this work, and were standing near the workman, in or about the railway tracks. The plaintiff testified that he was going along the north side of Bank street, on the pavement, until he got near Spring street, when he saw some boys standing in the street on the north track; that he went out into the street, and then thus described what occurred: "And they walked up a little ways, and I caught up to them; and my face was towards the west. I saw them make a break towards the north; and I don't know what I did it for, but I just run with them, and because I saw them running; and I fell on my hands and feet, and the car struck me, and I saw it was going to cut me across my thighs, so I scrambled out in some way, and it caught my left leg below the knee." He said he had been standing there three or four minutes, in the center of the track, with his back towards the way the car was coming; that he heard no bell or gong from the car before he was struck. Miss Oberman, one of his witnesses, after describing the position she was in, and referring to the man at work and the boys standing between the tracks, looking at him, said: "Joseph Cooney came down on the north side of Bank street, and got into the track, and, as he was there, the boys walked up to him. What they were doing I don't know; and, as they stood there, I noticed a car coming down at a very fast rate of speed. With that, I saw the boys make an attempt to run from the track, which they did, except Joseph; and, when he did, I saw him stumble, go down on his hands and feet, and the car went over him." Thomas J. Booz, who was riding on the car that injured the plaintiff, said that the motorman stopped at Caroline street, where other tracks crossed those on Bank street, and rang the gong there, but that he did not ring it as he approached Spring street. The accident, according to the testimony of the plaintiff's witnesses, happened about where the easterly side of Spring street intersects Bank street, and at a point about 220 feet, according to the plat in evidence, from the easterly side of the tracks on Caroline street, where the car stopped.

The danger to those lawfully using the streets of cities and towns by reason of the introduction of "rapid transit" on the street railways is apparent to the casual observer, and is forcibly brought to the attention of courts by the numerous cases that have been before them since the streets have been thus used. As street-railway companies have no exclusive right to the use of so much of the bed of the street as their tracks occupy, this court has more than once had occasion to point out the distinction between the rights and duties of persons injured by accidents on street railways and those of persons injured while trespassing on the rights of way of railroad companies owning their own tracks; and the duties of the companies cannot be more distinctly announced than was done in Cooke v. Traction Co., 80 Md. 551, 31 A. 327. Assuming that the car that caused the injury to the plaintiff approached the crossing at Spring street at a very fast speed, without the motorman sounding the gong or giving any alarm, while there were a number of boys on the track in full view of him, which facts the plaintiff offered evidence tending to prove, the prayer which sought to take the case from the jury on the ground that there was no legally sufficient evidence of negligence on the part of the defendant was necessarily rejected, as under the circumstances, the question of negligence vel non was for the jury Then, again, if it be true that the plaintiff was standing in the center of the track, with his back towards the car, the question whether the motorman used due care to avoid the accident was also necessarily submitted to the jury. The track was straight between Caroline and Spring streets, with an unobstructed view from one street to the other; and we know of no principle that would permit the court to say that, under such circumstances, the motorman was not guilty of negligence, assuming, as we have said, the plaintiff's evidence to be true. If he was thus standing on the track, the motorman could not have failed to see him if he exercised even a much less degree of care than is required of him; and, if he did see him in that position, it was manifestly his duty...