National Hauling Contractors Co. v. Baltimore Transit Co.

• Decision Date: 01 November 1945
• Docket Number: 5.
• Citation: 44 A.2d 450,185 Md. 158
• Parties: NATIONAL HAULING CONTRACTORS CO. v. BALTIMORE TRANSIT CO.
• Court: Maryland Court of Appeals

44 A.2d 450

185 Md. 158

NATIONAL HAULING CONTRACTORS CO. v. BALTIMORE TRANSIT CO.

No. 5.

Court of Appeals of Maryland

November 1, 1945

Appeal from Superior Court of Baltimore City; Emory H. Niles, Judge.

Action by National Hauling Contractors Company, to its own use and to the use of the American Insurance Group, Newark, N. J against Baltimore Transit Company for damages resulting from a collision between a tractor-trailer unit belonging to plaintiff and a two-car train of defendant. The court granted defendant's demurrer prayer for withdrawal of the case from the jury on the ground of contributory negligence, and plaintiff appeals.

Affirmed.

Foster H. Fanseen, of Baltimore (Isidor Roman, of Baltimore, on the brief), for appellants.

Wallis Giffen, of Baltimore, for appellee.

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

MELVIN Judge.

This suit is the result of a collision between a tractor-trailer unit belonging to the appellant-plaintiff, and operated by one of its drivers, and a two-car train of the appellee-defendant, at or near the intersection of Baltimore Street and Bond Street in Baltimore City about 5:30 o'clock on the morning of December 20, 1943.

The tractor-trailer combination, 40 feet in length over-all and weighing about 16 tons, had been proceeding in a southerly direction on Bond Street and was going down a three per cent grade. That street, which runs north and south, is 41 feet 10 inches wide, with sidewalks approximately 14 feet 6 inches wide. Baltimore Street, which runs east and west, is 41 feet 5 1/2 inches wide, with sidewalks approximately 14 feet 9 inches in width. According to the testimony of the driver Louis Vasili, who had traveled over this intersection before, he was going about fifteen miles an hour as he approached Baltimore Street, and was to the right of the center of Bond Street. As he neared the intersection, and when the radiator of the tractor had about reached the north building line of Baltimore Street, he looked both ways and saw a two-car trolley train approaching from his left on Baltimore Street, '75 or 100 feet away' and coming down a five per cent grade. Without looking further he proceeded with his ponderous vehicle right on across Baltimore Street in the path of the oncoming street car train. The cab in which he was sitting had passed the curb line on the south side of that Street when the street car collided with the trailer a few feet forward of its left rear wheels, about ten feet from the end of the trailer, and serious property damage resulted.

Further facts stipulated or established were that at the time and place of the accident it was dark, the weather was clear and the streets were dry; that both vehicles were lighted in the customary manner and that the street light at the northeast intersection of Baltimore and Bond Streets was burning; that there was nothing to obstruct the view of either operator as the tractor-trailer entered the intersection, and that the latter vehicle, after its driver saw the street car coming from his left 75 or 100 feet away, had to travel the distance of at least 27 feet from the north building line of Baltimore Street to the nearest trolley track; that the street car train was coming at normal speed and that neither of said streets is a boulevard or controlled by automatic traffic signal or by police officer.

At the conclusion of the plaintiff's case defendant offered two demurrer prayers, A and B. The former asked to withdraw the case from the jury for the lack of legally sufficient evidence of primary negligence, and the latter sought withdrawal on the ground of contributory negligence. The Court did not act on defendant's A prayer but granted its B prayer, and the exception to this ruling presents the one question involved in this appeal.

As expressed in appellant's brief, the question is: 'Was the driver of the National Hauling Contractors' tractor-trailer guilty of such contributory negligence that as a matter of law, the case should have been withdrawn from the jury?'

In passing upon this question it is of first importance to note that contributory negligence, like primary negligence, is relative and not absolute and is dependent upon the peculiar circumstances of each case. Crunkilton v. Hook, 42 A.2d 517, 520; Siejak v. United Rwys., etc., 135 Md. 367, 109 A. 107; Ausherman v. Frisch, 164 Md. 78, 163 A. 852; Chesapeake & Potomac Telephone Co. v. Merriken, 147 Md. 572, 128 A. 277, 41 A.L.R. 763; McNab v. United Rwys., etc., 94 Md. 719, 51 A. 421.

In all such cases it is essential that to justify the trial court in withdrawing the case from the consideration of the jury on the ground of contributory negligence by the plaintiff, the negligent act relied on must be distinct, prominent and decisive, and one about which ordinary minds would not differ in declaring it to be negligent. Merrifield v. C. Hoffberger Co., 147 Md. 134, 137, 127 A. 500; Taxicab Co. of Baltimore City v. Emanuel, 125 Md. 246, 93 A. 807; State v. Carroll-Howard Supply Co., 183 Md. 293, 301, 37 A.2d 330; Friedman v. Hendler Creamery Co., 158 Md. 131, 148 A. 426; Cogswell v. Frazier, Md., 39 A.2d 815.

In the instant case the inquiry, therefore, becomes: Was the action of plaintiff's chauffeur in starting across Baltimore Street with his combination vehicle, under the circumstances related by him, such a distinct, prominent and decisive act of negligence as amounts to a bar to plaintiff's recovery? These circumstances are: When the cab of his trailer reached the building line of Baltimore Street he was approximately 32 feet from the nearest street car track, and, looking to his left, then and there saw a trolley train approaching the intersection. Without giving another look, he started right across the intersection at an unchanged speed of fifteen miles an hour in the path of the oncoming trolley. The speed of the latter was described as 'normal' by the plaintiff's other witness, Griffith, who was driving another tractor-trailer some fifty feet in the rear of the vehicle which was struck. The mere statement of these basic facts is sufficient to show, without any room for doubt, that this action of plaintiff's employee directly contributed to the happening of the accident and was a proximate cause of it. Campbell & Sons v. United Rys., etc., 160 Md. 647, 650, 154 A. 552. As in that case, the facts are wholly inconsistent with any other theory and make out a clear case of negligence in law.

It manifests a lack of due care, and hence constitutes negligence, for a motorist operating a heavy and ponderous combination of tractor and trailer, weighing sixteen tons, with an over-all length of some 40 feet, to attempt to cross railroad tracks in the fact of a street car train seen to be approaching seventy-five to one hundred feet away. See Rose & Son v. Philadelphia Rapid Transit Co., 73 Pa.Super. 260; Blashfield Cyclopedia Automobile Law & Practice, Vol. 3, § 1992. While a motorist has the right to expect others to observe the specific legal duties the law demands of them, this does not excuse him from the specific duties which the law imposes upon him, and for a motorist to leave a place of safety and unnecessarily to incur a risk of injury in complete and utter reliance upon a motorman's avoiding any danger created by his (the motorist's) action, is negligence. Case v. Jefferson City Bridge & Transit Co., Mo.App., 189 S.W. 390; Blashfield Cyclopedia Automobile Law & Practice, Vol. 3, § 1978.

On this appeal, the question of primary negligence is not before us, inasmuch as the trial judge did not act on defendant's 'A' prayer relating to that point. However, 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. Campbell & Sons v. United Railways, etc., supra. While the burden of proof is upon the defendant to establish such contributory negligence, where the facts are undisputed and are open to but one inference, whether they show contributory negligence as a matter of law is for the court to decide. State, to use of Bacon v. Baltimore & P. R. R. Co., 58 Md. 482; Ziehm v. United Electric Light & Power Co., 104 Md. 48, 64 A. 61; Mitchell v. Dowdy, Md., 42 A.2d 717.

In the use of public street crossings, a clear distinction is to be drawn between those cases involving peedstrians and ordinary automobiles and those involving heavy trucks and tractor-trailer combinations. In recent years the number of these latter vehicles on the public highways has steadily increased, so that now they are imposing a servitude thereon which, in comparison with less unwieldy and less dangerous vehicles, calls for the exercise of more than usual care to avoid injury. United Rwys., etc. v. Sherwood Bros., 161 Md. 304, 309, 157 A. 280; Siejak v. United Rwys., etc., 135 Md. 367, 109 A. 107, containing an apt quotation from New York Central, etc. v. Maidment, 3 Cir., 168 F. 21, 21 L.R.A.,N.S., 794; Campbell v. United Railways, etc., supra [160 Md. 647, 154 A. 554].

This rule applies particularly to street intersections where electric trolley cars are known to be passing at frequent intervals, and where the safety, and even the lives of passengers and crew, as well as of the motor vehicle operators, are dependent upon the exercise of a degree of care commensurate with the extraordinary risk involved. As expressed by Judge Offutt in the Campbell case: 'Reasonable care in the operation of such a ponderous and potentially dangerous machine as a loaded truck weighing ten tons over a public highway requires that the driver shall at all times maintain a vigilant and careful watch to avoid injury to others in the...