Baltimore Traction Co. v. Helms

• Decision Date: 05 January 1897
• Citation: 36 A. 119,84 Md. 515
• Parties: BALTIMORE TRACTION CO. v. HELMS.
• Court: Maryland Court of Appeals

36 A. 119

84 Md. 515

BALTIMORE TRACTION CO. v. HELMS.

Court of Appeals of Maryland

January 5, 1897

Appeal from court of common pleas.

Action by Thomas Helms against the Baltimore Traction Company for a personal injury. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before McSHERRY, C.J., and BRYAN, ROBERTS, BRISCOE, and FOWLER, JJ.

Eugene H. Harris, Fielder C. Slingluff, and W. Pinkney Whyte, for appellant.

B Rosenheim and William Colton, for appellee.

FOWLER J.

On the 19th of March, 1895, the plaintiff boarded a car of the Baltimore Traction Company bound east on Fort avenue. On this avenue there is another track of the same company, which is used for its cars going west. The track used by the cars running east is on the south side, and that used by the west-bound cars is on the north side, of Fort avenue. The plaintiff alighted from an east-bound car at or near the corner of Fort avenue and Garrett street, and proceeded at once, in the rear of the car he had just left, to walk north across Fort avenue. He was injured by one of the cars of the defendant company moving west. At the conclusion of the testimony of the plaintiff the defendant asked the court below to take the case from the jury, and, its prayer to this effect having been refused, it offered testimony on its own behalf. At the conclusion of the defendant's testimony it renewed its request to have the case taken from the jury. But the court again refused so to do, and hence this appeal. There are some other questions presented, but, inasmuch as we are of opinion that the plaintiff failed to make out a case for the jury, and is therefore not entitled to recover, we will not consider them. Assuming, then, the truth of the plaintiff's testimony, as we are bound to do,--this being the legal effect of the defendant's first prayer,--what is the testimony of the plaintiff? When the car in which the plaintiff was riding was approaching Garrett street, he notified the conductor to stop. The car having stopped, he left it; and what subsequently happened was described by him in his examination in chief, his cross-examination, and in his answers to a series of questions put to him by the learned judge below. It seems to us, however, that, according to his own account of this unfortunate occurrence, there is ample evidence to show that he was injured by reason of his own carelessness and reckless disregard of his own safety. In his cross-examination he said: "As I stepped off, I looked down [east] Fort avenue to see if a car was coming in that direction, and I saw none coming, but, unluckily for me there was one coming, to my sorrow, and I started across the track; and I was just as deliberate as you are now, and hearing no warning of any approaching car, I was struck. The first thing I noticed was when the motorman hollered 'Look out!' and his voice hadn't done sounding when I was hit." "That if he had stopped when he alighted from the east-bound car, and waited for it to pass until his line of vision would cover the west-bound track, no accident would have happened." The court then asked the following questions, and the plaintiff gave the following answers: "Question. Now, what prevented you, after you passed around the car, from looking in time? Answer. Well, what I mean, your honor, is: Before I alighted from the car I looked in the direction of the cars that came towards the west, and I didn't see any approaching car; so I was just as cool and deliberate as I could be, thinking there was nothing, and I stepped right on the west-bound track, and just as slow as a man could walk, and before I knew it I was struck. Question. What I want to know is this: You passed around the rear of the car? Answer. Yes, sir. Question. And, when you got around the rear of the car, nothing obstructed your vision up in that direction? Answer. No, sir. Question. Then, if you could have seen the car, and must have seen it if you looked, why is it, as you say, you looked too late? Answer. Why, because, your honor, the car was running at such a high rate of speed it got on me before I knew it, or before I could realize it. Question. But you would have seen it if you had looked around? It is a straight track there? Answer. Yes, sir; it is a straight track there from the bridge, and for a mile further on. Question. In your examination in chief you said that, when you alighted from the car, you stopped, looked, and listened. Answer, Yes, sir. Question. Now, when you crossed behind the car, and before you reached the west track, did you, or not, make an effort to look up? Answer. I had my head turned towards the west-bound track all the time. I was looking for a car to come, but saw none. * * * Question. What I want to get at is this: The witness said he was walking deliberately. What I want to know is, if that is the case, why, when he got around the car, to where nothing obstructed his vision, he didn't stop, or what prevented him from stopping at once?" Whereupon the counsel for plaintiff inform the court that the plaintiff "at that time was right on the three-foot space" (referring to the space between the east and west bound tracks). In answer to further questions the plaintiff answered that he could not possibly have stopped on the three-foot space, and that he had his foot inside the rail when the car hit him; that he had just merely stepped over the rail; and that he heard no bell.

By the well-settled law applicable to the class of cases to which this belongs, it is not enough for the plaintiff to prove the negligence of the defendant, and the injury which followed but he is bound also to establish, by satisfactory proof, before he can recover, that he was himself free from negligence, and exercised ordinary care to avoid the consequences of the defendant's negligence. The right to recover depends upon two distinct propositions of fact: First, the negligence of the defendant; and, second, the exercise of due and ordinary care by the plaintiff. And if he failed to prove negligence on the part of the defendant, or if it appear from his own evidence that he was guilty of negligence directly contributing to the injury, he cannot recover. Assuming, then, as we must, from the plaintiff's testimony, that the defendant was guilty of negligence in running its car, in violation of the city ordinance, at the high rate of speed testified to, was the plaintiff guilty of such contributory negligence as will prevent a recovery? He walked deliberately, from behind a street car, across a track on which he knew cars were running at...