Beck v. Baltimore Transit Co.

• Decision Date: 20 May 1948
• Docket Number: 159.
• Parties: BECK v. BALTIMORE TRANSIT CO.
• Court: Maryland Court of Appeals

58 A.2d 909

190 Md. 506

BECK v. BALTIMORE TRANSIT CO.

No. 159.

Court of Appeals of Maryland

May 20, 1948

Appeal from Baltimore Court of Common Pleas; W. Conwell Smith, Chief Judge.

Action by Martin R. Beck, to his own use and to the use of Sterling Fire Insurance Company, against the Baltimore Transit Company, to recover for damages to plaintiff's taxicab when struck by defendant's streetcar. From a judgment non obstante veredicto for costs in defendant's favor, the plaintiff appeals.

Judgment reversed and judgment entered in favor of plaintiff.

J. Gilbert Prendergast, of Baltimore (Clark, Thomsen & Smith, of Baltimore, on the brief), for appellant.

Philip S. Ball and Theodore Sherbow, both of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS and HENDERSON, JJ and BAILEY, Cir. J., specially assigned.

BAILEY Circuit Judge, specially assigned.

This is an appeal by the plaintiff from a judgment n.o.v. for costs in favor of the defendant, entered under Rule 8, Part III Trials, of the General Rules of Practice and Procedure, 1945 on motion of the defendant after the jury empaneled to try the case had rendered a verdict in favor of the plaintiff in the amount of $298.53.

The plaintiff, appellant here, contends that the judgment should be reversed and a new judgment entered in his favor in the amount of the jury's verdict for the following reasons (1) because there was evidence legally sufficient to establish primary negligence on the part of the defendant, acting through its employee; (2) because the evidence does not establish contributory negligence by the plaintiff's agent as a matter of law; and (3) because, even if the plaintiff's agent was negligent, the facts call for the application of the doctrine of last clear chance.

The Court, in deciding whether to grant demurrer prayers or motions for judgments non obstante veredicto, resolves all conflicts in the evidence in favor of the plaintiff and assumes the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right to recovery. Armiger v. Baltimore Transit Co., 173 Md. 416, 196 A. 111; Baltimore Transit Co. v. Worth, Md., 52 A.2d 249. The evidence in this case must, therefore, be considered in the light most favorable to the appellant.

The accident occurred on May 18, 1947, at about 11:50 p. m. on Light Street, in the City of Baltimore, a short distance north of its intersection with Fort Avenue. According to the plat filed as an exhibit Light Street is 32 1/2 feet in width at this point. There are two sets of street car tracks in its center. The distance between the outermost rail of the north-bound tracks and the east curb is 8 feet, 10 inches. The area is well lighted. One Riley was the driver of a taxicab owned by the appellant. With his wife occupying the front seat, he had driven from Glen Burnie with two passengers, a colored man and woman. As he was driving north on Light Street the man directed him to pull over in front of the Royal Restaurant on the east side of Light Street, a short distance north of Fort Avenue, stating that he wanted to get off. The driver stopped the taxicab as directed about six inches from the curb. When he asked for the fare of $3, the flat rate from Glen Burnie to Baltimore, the man refused to pay. The driver then pulled the hand brake on the taxicab, got out and went to the corner of Fort Avenue looking for a policeman. As he was returning to his taxicab he saw a street car moving north on Light Street stop about six feet behind his taxicab and then move forward striking his taxicab and stopping again when the front bumper was about at the middle of the street car. The left side of the taxicab was considerably damaged. The amount of damages was stipulated by counsel.

Zilka, the operator of the street car, testified on behalf of the appellee. His testimony did not differ in any material respect from that of Riley. His version of the accident was as follows: 'I stopped at Fort Avenue and Light to pick up passengers. After picking the passengers up there the light changed green and I proceeded across Fort Avenue. As I was going across I noticed this car sitting out from the curb, and I reduced my speed to about two or three miles an hour and looked to see if I had room to get by the car, and I thought I could clear the car all right and I went by it at about that speed. As I reached the left front fender I heard the car strike and I stopped immediately. When I got out of the street car I looked at the automobile; the damage seemed to be on the left front fender and there was some scrape marks on the street car, about ten feet back of the front door post.' He further testified: 'I got down to look to see if I could get by'; 'I thought I could get by it all right'; 'There was no one in the driver's seat'; and 'I would say it (the taxicab) was close to eight or ten inches' from the curb. There was no protrusion from the side of the street car.

The testimony of Maddox, a passenger on the street car, was to the effect that the street car stopped or slowed up and then started again before the accident and that when he observed the taxicab after the accident it 'was sitting out from the usual line of cars' and that 'the rest of the car was to the curb but the front of the car looked as though it was about to pull out or just had backed in.'

While it is true, as pointed out in the case of E. H. Koester Bakery Co. v. Poller, Md., 50 A.2d 234, that the street railway owes its passengers a duty to deliver them to their destination as quickly as possible, consistent with safety, it has been held by this Court in numerous cases that it is the duty of the motorman, when operating a street car on the public streets, to keep a lookout, signal the approach when such warning is reasonably necessary, move at a moderate speed and stop when a necessity for stopping becomes apparent. Baltimore Transit Co. v. Worth, supra; Baltimore Transit Co. v. Alexander, 172 Md. 454, 192 A. 349; Washington B. & A. R. Co. v. Fingles, 135 Md. 574, 109 A. 431; United Rys. & Electric Co. v. Mantik, 127 Md. 197, 96 A. 261.

The rule with respect to contributory negligence is that the act relied on to establish, as a matter of law, the existence of contributory negligence must be distinct, prominent and decisive, and one about which ordinary minds would not differ in declaring it to be negligent. Where the nature and attributes of an act relied on to show negligence contributing to an injury sustained can only be determined correctly by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the court to determine its quality as a matter of law. State v. Carroll-Howard Supply Co., 183 Md 293, 37 A.2d 330; Holler v. Lowery, 175 Md. 149, 200 A. 353; Merrifield v. C. Hoffberger Co., 147 Md. 134, 127 A. 500; Taxicab Co. v. Emanuel, 125 Md. 246, 93 A. 807. The evidence must show some prominent and decisive negligent act on the part of the plaintiff, or as in this case, his agent, which directly contributed to the accident and was the proximate cause thereof, and this negligent act must be of so prominent and decisive a character as to leave no room for difference of opinion thereon by reasonable minds. Jones v. Wayman, 169 Md. 670, 182 A. 417; Baltimore & O. R. Co. v. State, 104 Md. 76, 64 A. 304; Cooke v. Baltimore Traction Co.,...