Harry T. Campbell & Sons v. United Rys. & Elec. Co. of Baltimore

• Decision Date: 29 April 1931
• Docket Number: 13.
• Parties: HARRY T. CAMPBELL & SONS v. UNITED RYS. & ELECTRIC CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

154 A. 552

160 Md. 647

HARRY T. CAMPBELL & SONS v. UNITED RYS. & ELECTRIC CO. OF BALTIMORE.

No. 13.

Court of Appeals of Maryland

April 29, 1931

Appeal from Superior Court of Baltimore City; Eugene O'Dunne Judge.

Action by Harry T. Campbell & Sons, for its own use and for the use of Columbia Casualty Company, against United Railway & Electric Company of Baltimore. From a judgment for defendant plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE and SLOAN, JJ.

Rignal W. Baldwin, Jr., of Baltimore (William D. Macmillan and Semmes, Bowen & Semmes, all of Baltimore, on the brief), for appellant.

Walter V. Harrison, of Baltimore (Philip S. Ball, of Baltimore, on the brief), for appellee.

OFFUTT, J.

This is an appeal from a judgment on a directed verdict for the defendant in an action brought in the superior court of Baltimore city by Harry T. Campbell & Sons for its own use and that of the Columbia Casualty Company against the United Railways & Electric Company to recover compensation for damage to its truck caused by a collision between the truck and a street railway car operated by the defendant over its railway tracks.

The collision occurred on Roland avenue, a public highway of Baltimore city, a short distance south of Elmhurst avenue at a point where tracks of the defendant branch and curve from its north and south bound tracks running along Roland avenue, westerly across that avenue to its car barn which is west of it. Roland avenue is a wide thoroughfare running from Lake Avenue South through Roland Park. In the center of it is located defendant's right of way over and along which are laid two sets of T rail tracks, and which is separated from that part of the avenue used for general vehicular traffic by low hedges, broken by open spaces at street intersections. On either side of the right of way is an unpaved strip four and one-half feet wide, and between those strips and those parts of the avenue devoted to pedestrian traffic are macadam roadways twenty feet and six inches wide. On the east side of its right of way and adjacent to its north-bound tracks the defendant maintains a landing station for the use of passengers. From that station two sets of tracks branch from its north-bound tracks and curve northwesterly across Roland avenue to a "Waiting Platform" which it maintains on its own property immediately west of the avenue. North of that property two other tracks curve southwesterly from the south-bound tracks across the avenue to the same platform. So that there are in the bed of the western driveway on Roland avenue four sets of curving tracks at that point.

The plaintiff called two witnesses, one the truck driver, the other defendant's motorman. Donovan, the truck driver, testified that, at the time of the accident, he was operating a three and a half ton truck, carrying a load of 13,000 pounds, southerly along Roland avenue at about fifteen miles per hour; that as he approached the curving tracks in Roland avenue he observed a street car standing on the straight north-bound track of the defendant, but "thought" it was "going to stand there" or at least would not enter the southernmost switch, and paid no further attention to it until he saw it directly in front of him too late to avoid a collision, and that at that time it appeared to the witness that the car had "speeded up"; that the right front wheel and right front part of the frame of the truck struck the rear end of the street car. On cross-examination he added that he could not say definitely whether when he first saw it the street car was standing still or moving slowly; that he had been over the avenue before and was familiar with the crossing.

Warner, the motorman, testified that he stopped the street car on the north-bound track at the landing station on the east side of the right of way and discharged two passengers, that he then proceeded over the southernmost switch across Roland avenue to the "waiting station"; that because of the switch the car was moving slowly at eight or ten miles an hour; that the truck was coming between twenty and twenty five miles an hour; that he first saw the truck when it was about two hundred feet away, and it was then traveling at about twenty five miles an hour.

The question in the case is whether these facts furnish evidence legally sufficient to show that the sole and proximate cause of the collision was the defendant's negligence, the answer to which depends (1) upon whether they will permit any rational inference that the defendant was guilty of primary negligence directly contributing to the accident, and, (2) if it was, whether these facts show as a matter of law that plaintiff was also guilty of negligence directly contributing thereto.

If any negligence on the part of the plaintiff directly contributed to the happening of the accident, the negligence of the defendant as a contributing factor is immaterial. United Railways v. Durham, 117 Md. 192, 83 A. 154; State, etc., v. Md. Elec. Rys. Co., 124 Md. 441, 92 A. 961; O'Meary v. Baltimore & B. A. Ry. Co., 133 Md. 508, 105 A. 732. We will therefore consider these questions in inverse order.

The formula long employed in this state to test the existence of contributory negligence as a matter of law is that the act to which that quality is ascribed must present some feature of reckless inattention or indifference so prominent and decisive in character that no room is left for ordinary minds to differ as to its imprudence, Waltring v. James, 136 Md. 414, 111 A. 125; Baltimore & O. R. R. Co. v State, Use of Wiley, 72 Md. 36, 18 A. 1107, 6 L. R. A. 706, 20 Am. St. Rep. 454; Askin v. Moulton, 149 Md. 143, 131 A....