Mattingly v. Montgomery

• Decision Date: 13 November 1907
• Citation: 68 A. 205,106 Md. 461
• Parties: MATTINGLY v. MONTGOMERY.
• Court: Maryland Court of Appeals

68 A. 205

106 Md. 461

MATTINGLY v. MONTGOMERY.

Court of Appeals of Maryland

November 13, 1907

Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.

Action by Samantha M. Montgomery against James T. Mattingly. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BRISCOE, SCHMUCKER, BOYD, BURKE, and ROGERS, JJ.

Ferdinand Williams and Finley C. Hendrickson, for appellant.

Frank A. Perdew and Arch A. Young, for appellee.

BURKE J.

This is a suit brought against the master to recover damages for injuries alleged to have been sustained by the plaintiff in consequence of the negligence of the defendant's servant. On the 12th of July, 1906, George Harmison ran down and severely injured the plaintiff by a horse and wagon of the defendant. The case was tried in the circuit court for Allegany county, and from a judgment entered in that court the defendant has brought this appeal.

The declaration alleges that on the date mentioned, while the plaintiff was walking along Virginia avenue, at or near a point just immediately south of the Baltimore & Ohio Railroad crossing at said avenue, it being one of the public highways of Allegany county, she was run down and struck by a horse and wagon driven by said Harmison, who was driving the horse as the agent and servant of the defendant, and was knocked down and rendered unconscious, and was seriously cut in the forehead and otherwise permanently injured; that at the time said plaintiff was injured she was using due care and caution in passing along said highway, and that the injuries received by her were the result of the recklessness and negligence of the agent and servant of the defendant in driving and controlling the horse. There are certain facts which the evidence establishes beyond all question. These are, first that the plaintiff was struck and injured by the horse and wagon driven by Harmison; second, that at the time she was so injured Harmison was driving the horse as a servant of the defendant, and was acting at the time within the scope of his employment, and in his master's service. If the injuries which the plaintiff sustained were the result of the negligence of Harmison, the defendant must be held liable provided she was free from contributory blame. The principle upon which the master's liability is determined in cases of this kind is thus stated in Evans v. Davidson, 53 Md. 249, 36 Am. Rep. 400: "If the servant be acting at the time in the course of his master's service and for his master's benefit, within the scope of his employment, then his act, though wrongful and negligent, is to be treated as that of the master, although no express command or privity of the master be shown. This principle is sanctioned by all the authorities." Negligence in the defendant's servant is the foundation of the action, and the proof must show, or tend to show, that the injuries sued for were caused by that negligence. The existence of negligence must be sought for in the facts and surrounding circumstances of each particular case. In Cooke v. Baltimore Traction Company, 80 Md. 554, 31 A. 328, we said: "Negligence is essentially relative and comparative; not absolute. It is not even an object of simple apprehension apart from the circumstances out of which it grows. As these circumstances necessarily vary in their relations to each other, under different surroundings, they inevitably change their original signification and import. Hence it is intrinsically true that those things which would not under one condition constitute negligencea different, though not necessarily an opposite, condition, most unequivocally indicate its existence."

Now, twould, on the other hand, under a different, though not necessarily an opposite, condition, most unequivocally indicate its existence."

Now the record before us, contains evidence tending to show the following facts: Virginia avenue, in the city of Cumberland, is crossed by five tracks of the Baltimore & Ohio Railroad Company. The crossing is about 40 feet wide, and the distance across the tracks is about 75 feet. All the witnesses who testified upon the point spoke of this crossing as being very dangerous because of the frequent passing of trains and the shifting of engines at that point. The evidence shows that there was a watch box near the crossing when the plaintiff was injured, and that there was a footpath or pavement on Virginia avenue close to the watch box. The plaintiff lived in South Cumberland, and on the day of the accident had gone to the store of Mr. Kline, and was returning to her home. In order to reach her home, it was necessary for her to cross the tracks of the railroad, which she had done in safety, and, when she was in the act of stepping off of the track to the pavement on Virginia avenue, she was struck by the horse and wagon which came across the tracks behind her, and which she neither saw nor heard. There was an engine on the tracks, about halfway over the crossing at the time she was injured. This engine was in charge of Conductor George W. Holtzman, and had come up to the crossing from the lower end of the company's yard. There is also evidence tending to show that Harmison drove down Virginia avenue at a rapid rate of speed, going about 12 miles and hour, and, without stopping, continued across the tracks, although he saw the engine approaching when he reached the edge of the crossing. he continued across at a rapid speed, but the engine reached the crossing before he could get over. The engine stopped about midway of the crossing, and, when Harmison attempted to pass in front of it, his horse became frightened at the noise of escaping steam and bolted, or was pulled upon the sidewalk, and knocked down and injured the plaintiff. Mr. Holtzman, who was in charge of the yard engine, testified that his engine had stopped just about halfway over the crossing; that he saw the defendant's horse rush past in front of the engine, and strike the plaintiff and knock her down; that she fell on her face and turned over, and that the wheel struck her alongside of the head; that the horse was going rapidly, and that the plaintiff was on the sidewalk when she was struck. James A. Hunt, who had charge of another engine which was upon the tracks at the time of the injury, testified that he saw the horse coming down Virginia avenue "at a pretty tolerable fast rate of speed," about 12 miles an hour, and that it did not stop before going upon the crossing. The witness John Hunt, who was a fireman on the engine in charge of James A. Hunt, testified as follows: "We had come up to the crossing there and stopped, and I don't know how long we were standing there. It wasn't very long. The brakeman was standing on the footboard, and all at once I looked across the crossing and noticed this team coming across hurriedly, and there was a yard engine standing on the crossing, and I guess probably maybe eight or ten feet of the front end of the engine had approached the crossing and there was room enough for me to see, and this lady was walking down the sidewalk--we call it a sidewalk, it is close to the watch box--and all at once I saw that he was going to hit the lady, and I started to holloa, but the deed was done too quick. The horse struck the lady and knocked her down." He further said that the engine had gotten up to the crossing and stopped: that the team had not gotten in front of his engine, but he yard engine "was stopped dead still." There was evidence tending to show that Harmison could have stopped the team with safety after he had gone upon the...