Phillips v. Washington & R. Ry. Co. of Montgomery County
| Decision Date | 19 December 1906 |
| Citation | 65 A. 422,104 Md. 455 |
| Parties | PHILLIPS v. WASHINGTON & R. RY. CO. OF MONTGOMERY COUNTY. |
| Court | Maryland Court of Appeals |
Appeals from Circuit Court, Howard County; I. Thomas Jones and Wm. H Thomas, Judges.
Action by Joseph N. Phillips against the Washington & Rockville Railway Company of Montgomery County. From a judgment for defendant, plaintiff appeals. Affirmed.
Argued before McSHERRY, C.J., and BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.
Charles W. Prettyman, for appellant.
H Maurice Talbott, for appellee.
This is a personal injury case, and there is but one question raised on the record. At the conclusion of the testimony the trial court granted an instruction which directed the jury to return a verdict in favor of the defendant on the ground that the plaintiff had been guilty of contributory negligence. Was that ruling right? All the other prayers presented by both sides were rejected, but, inasmuch as they are not included in the only bill of exceptions contained in the transcript, they will not be alluded to, even though they have been appended to the record and have been printed therein immediately after, but not as a part of, the bill of exceptions.
The Washington & Rockville Electric Railway runs from Washington to Rockville. For some portion of its route it occupies a part of the roadbed of a public road which was formerly a turnpike road. At the place where the accident occurred, and for some distance on either side of that spot, the electric roadbed occupies from 10 to 15 feet in width of the upper or eastern side of the old turnpike road. No plat of the locality appears in the record, and the description of the surrounding topography is very confused and imperfect. Going from Rockville towards Washington on the turnpike road, the railroad at and along the scene of the accident is upon one's left hand; that is, upon the left-hand margin of the turnpike road. At a point described as Lochte's shop nearer to Rockville than the place of the accident, there is a long siding used to enable cars going in opposite directions on the single track of the electric road to pass. Farther down towards Washington is Walsh's crossing, a road or way leading from the upper or eastern side of the turnpike road to Walsh's residence and to Chevy Chase Circle, a thickly settled suburban settlement not far distant from Washington. A car going from Rockville to Washington after rounding a curve at Lochte's shop and reaching Wilson's store, can be seen from Walsh's crossing on looking towards Rockville for a distance of 300 yards before it gets to the crossing. On the 12th of August 1903, Phillips, the appellant, was engaged in making hay on the farm of Dr. Walsh near the crossing. The car from Rockville to Washington was due at the siding at 2 o'clock, and was not in the habit of leaving the siding until the arrival of the car from Washing to Rockville, which was likewise due at the same hour. The appellant, who lived in the vicinity of the siding and was familiar with the running of the cars, left his home shortly before 2 o'clock, p. m., to go to Walsh's field. He rode from his home sidewise on his horse, in his shirt sleeves with a pitch fork on his back. The direction he went along the turnpike was towards Washington. Both of his legs were on the right-hand side of the horse, and his back was consequently towards the railway track. He was proceeding in a line parallel to the railway. When he reached Walsh's crossing he turned to the left, and this brought his horse face to face with the railway tracks. He was then between 10 and 15 feet distant from the tracks. He could have seen, according to one statement in the record, 900 feet up the track towards Rockville, and according to another statement 450 feet in the same direction, at the moment he turned to his left to go over the crossing. He says he slightly halted his horse, and looked in both directions, but saw no car approaching from either Rockville or Washington. He then proceeded to cross the track, and, after he and his horse had gotten nearly over, the car from Rockville struck the horse on the left hindquarter, and threw horse and rider against a trolley pole, injuring both. The theory upon which the court below acted, in granting the prayer to which exception is taken, assumed that there was evidence tending to prove some negligence on the part of the...
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