Caryl, to Use of Merchants Mut. Cas. Co. v. Baltimore Transit Co.

• Decision Date: 18 March 1948
• Docket Number: 106.
• Parties: CARYL, to Use of MERCHANTS MUT. CASUALTY CO. v. BALTIMORE TRANSIT CO.
• Court: Maryland Court of Appeals

58 A.2d 239

190 Md. 162

CARYL, to Use of MERCHANTS MUT. CASUALTY CO. v. BALTIMORE TRANSIT CO.

No. 106.

Court of Appeals of Maryland

March 18, 1948

Appeal from Baltimore City Court; Robert France, Judge.

Action by Harry S. Caryl, to the Use of the Merchant's Mutual Casualty Company, against the Baltimore Transit Company for personal injuries sustained by plaintiff as the result of being struck by defendant's trolley car while plaintiff was walking across a street at an intersection. Judgment for defendant, and plaintiff appeals.

Reversed and remanded for a new trial.

Nathan Patz, of Baltimore, for appellant.

Philip S. Ball and James J. Lindsay, both of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY Chief Judge.

The accident, which is the basis for the suit for personal injuries here on appeal, happened on October 22, 1945, a few minutes before 7:00 o'clock in the evening. The local was the intersection of Charles Street and North Avenue in the City of Baltimore. Traffic there was then controlled by lights on a tower in the approximate center of the intersection. The appellant (plaintiff) was walking east on the south side of North Avenue in the appropriate lane for pedestrian travel crossing Charles Street. The trolley car of the appellee was making a left hand turn from the east side of the intersection into Charles Street. It had come from the east on North Avenue and was going south on Charles Street.

The intersection was fully lighted and visibility was good, although it was after dark.

Appellant according to his testimony, started to cross Charles Street when the traffic light turned green, but halted when an automobile facing east on North Avenue made a right hand turn to go south on Charles Street. He stepped back to the curb until this automobile had passed in front of him, and, then again started across the street. He had looked towards the center of the intersection to see if there were cars or automobiles coming before he stepped off the curb. After the one automobile passed in front of him, he looked again to see that the light had not changed. An automobile facing north on Charles Street was waiting for the signal to proceed, and as he had to pass in front of this automobile, he kept his eyes on it as he walked across the street at a normal gait. When he had reached a point about midway between the east and west curbs of Charles Street he was struck on his left side by the trolley car. The tracks on which the car was running had, at that point, straightened out from the curve and were pointing directly south down Charles Street. The left side of the street car, just back of the front, came in contact with the appellant. The motorman was not aware of the accident, and continued down Charles Street without stopping. The appellant was thrown and badly injured.

It appears, therefore, that the appellant before he was struck had crossed the track on which the car was running or at least had reached the inside rail. He did not see the car until almost at the moment of impact. He did not hear any bell sounded by the car. He said 'if you were looking for the street car you would see it, but with the heavy traffic and looking at the islands, I was more concerned about automobiles on the other side, and whether I was going to get across on the other side before that car started up.'

At the conclusion of the plaintiff's case the trial court refused the defendant's prayer that there was no evidence of its negligence, but granted a contributory negligence prayer and directed a verdict for the defendant. From the judgment on this verdict, the plaintiff appeals.

As we have in the record only the evidence offered on behalf of the plaintiff, we have not a complete picture of the situation. There is nothing to show just when the trolley car started, whether at the instant the light changed to green or later. There is evidence that it was gathering speed as it came around the curve. From the testimony we have, however, it is clear that the appellant did not see the car, that he walked across the street in front of it, that he had almost cleared it when he was struck, that the motorman of the car did not see appellant, and that no attempt was made to stop the car or to retard its speed so as to avoid the accident.

The question before us, on this record, is whether the plaintiff was so clearly guilty of contributory negligence as to require the court to so hold as a matter of law. The general rules on this subject have been frequently stated, and need not be emphasized again, except to say that unless there is evidence about which reasonable minds may differ, the decision should be made by the court and not the jury. See Baltimore Transit Co. v. Young, Md., 56 A.2d 140. Here, however, the answer to the question turns on the right of appellant, under the traffic laws, to cross the street in the circumstances related. We must, therefore, consult the applicable statutes and decisions in order to reach a solution.

Prior to 1943, there was no statutory enactment specifically defining the reciprocal rights of pedestrians and vehicles at intersections where traffic was controlled by signals. Where there was no traffic control, pedestrians had the right of way at crossings and vehicles between crossings in all towns and cities (Flack's Annotated Code, Vol. 2, Art. 56, Sec. 235). That provision is still in the statute (1943 Supplement, Article 66 1/2, Sec. 181). But this court had decided the question of the respective rights and responsibilities of pedestrians and vehicles at traffic controlled intersections under the law prior to 1943. In the case of Panitz v. Webb, 1925, 149 Md. 75, 130A. 913, 915, an officer, directing traffic, had given the 'go' signal to westbound traffic. Plaintiff was walking west in response to this signal. Defendant's automobile was also going west, but turned north and there was a collision. The court commented on the statute giving pedestrians the right of way at intersections and the special exemption therefrom of such intersections where traffic was controlled, and said that this exemption left pedestrians and vehicles at controlled intersections to their common law relationship with respect to right of way where both had favorable traffic signals. 'In exercising the right to proceed, each of them was bound to use that degree of care and caution to avoid inflicting or receiving injury which persons of ordinary care and prudence would have used under like circumstances. The degree of care required of each of them was the same, although the manner of its exercise differed because of the objects to which it was applicable.'

Under this state of the law, we had before us a case involving an accident between a pedestrian and a street car, somewhat similar in its facts to the one before us. This is Doble v. United Railways, 1928, 155 Md. 343, 345, 142A. 106, relied on by appellee. The accident in that case was at a crossing not controlled by traffic signals. But at that time street cars were nto bound by rules of the road, and so the pedestrian had no right of way over them. The plaintiff walked in front of the street car which was turning towards her, and the court held she was guilty of contributory negligence as a matter of law. That case is clear authority in cases where neither party has the right of way, and where both are left to their common law reciprocal duties. The appellee contends that is the situation here, and that the Doble case is controlling.

The Legislature in 1943, by Chapter 1007 of...