United Rys. & Elec. Co. of Baltimore v. Durham

• Decision Date: 11 January 1912
• Citation: United Rys. & Elec. Co. of Baltimore v. Durham, 83 A. 154, 117 Md. 192 (Md. 1912)
• Parties: UNITED RYS. & ELECTRIC CO. OF BALTIMORE v. DURHAM.
• Court: Maryland Court of Appeals

83 A. 154

117 Md. 192

UNITED RYS. & ELECTRIC CO. OF BALTIMORE v. DURHAM.

Court of Appeals of Maryland

January 11, 1912

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Action by William Durham against the United Railways & Electric Company of Baltimore. From a judgment for plaintiff defendant appeals. Reversed.

J Pembroke Thom and Joseph C. France, for appellant.

D. G McIntosh, for appellee.

BRISCOE J.

It is not necessary to determine all of the questions raised by the record on this appeal, because, in the view we take of the case, we are of opinion that the court below committed an error in rejecting the defendant's third prayer, which is as follows: "The defendant prays the court to instruct the jury that, under the pleadings and evidence in this case, there is no evidence legally sufficient to entitle the plaintiff to recover and their verdict must be for the defendant."

The suit was brought by the appellee against the United Railways & Electric Company of Baltimore City, a corporation, and the defendant, in the court below, to recover damages for personal injuries received by him while driving his market wagon with a team of mules along Willow avenue, a public road in Baltimore county, near the city limits. The plaintiff on the 15th of October, 1909, the night of the accident, was driving up Willow avenue to the York road, in a covered wagon drawn by two mules, and it was in attempting to cross the railroad tracks at the intersection of Willow avenue, the terminal of the York road, and the turnpike that the accident occurred. At this point the York road runs north and south, and Willow avenue enters it from the east, and the plaintiff at the time of the accident was coming west on Willow avenue.

The plaintiff's account of the accident, as stated in his testimony, is as follows: "The last stop I made that evening was at Mr. Long's on the York road, and, just about the time I left there, I asked him the time of the day, and he said it was 10 minutes past 7. It was a dark night; so I came up Willow avenue, around up Willow avenue to the York road, to the railroad. When I first got to the railroad, there was a car coming, going to Towson, ringing the bell. I stopped, so did the car stop, and let off some passengers, and, when it started, I looked down the track. It was about the time of the evening when the cars run a little thick. I looked down the track, and saw no cars coming down the track. I looked up the track, and didn't see any cars coming, and then I started across. When I pulled up on the first track I looked up the track again. I saw no car, and I didn't look any more until I got on this other track. I didn't drive fast. I had a right heavy wagon and in the neighborhood of 1,000 pounds in it. I saw the car about six or eight feet from me before it struck me. That is the last thing I remember. When the car struck me, I didn't even feel the shock of the car or anything of the kind." On cross-examination he testified that he had traveled on the same road as on the evening of the accident for about 20 years, and ever since he was 18 years old, and that the car was six or eight feet from him, when he first saw it. "Q. You kept looking to see whether the car was coming? A. No; I looked the first time, until I looked the second time. Then I saw the car was on me. Q. When you looked the second time, the car was on you? A. Yes, sir. Q. Then you looked before you got on the north-bound track and looked, did you? A. Yes, sir. Q. The next time you looked the car was on you? A. I was on the north-bound track when I looked up the track. I saw the car was not coming down. I didn't see it when I looked the first time, but, when I looked again, the car was right on me about six or eight feet from me." He further testified that the curtains of the wagon were down, that he was driving in a slow walk, and he supposed this obstructed the view, as it tore the curtain "right off when I went through." There was evidence that one could see a long distance up the track, but, if a car was coming up and one going down ahead of it, you could not see the car coming down. There was also evidence to the effect that the headlight and all the lights inside of the south-bound car were burning, but there was no light upon the wagon driven by the plaintiff. The motorman testified that he did not see the wagon and team until within 30 or 40 feet of it, and used every effort to stop the car and prevent the accident, when he discovered the situation of the plaintiff.

The evidence as to the excessive speed of the car at the time of the accident is not very definite, but unless the improper speed was the direct and proximate cause of the injury, and that the injury would not have occurred but for the excessive speed, there could be no recovery upon this ground. P. W. & B. R. R. v. Stebbing, 62 Md. 517; Hayes v. Railroad Co., 111 U.S. 228, 4 S.Ct. 369, 28 L.Ed. 410; B. & O. R. R. Co. v. State, 62 Md. 479, 50 Am. Rep. 233.

Upon the proof we think this is a clear case of contributory negligence upon the part of the plaintiff, and there is nothing in the record to take it out of the operation of the rules and principles established by this court in Meidling's Case, 97 Md. 77, 54 A. 612, McNab's Case, 94 Md. 728, 51 A. 421, Manfuso's Case, 102 Md. 257, 62 A. 754,

Hatcher's Case, 103 Md. 78, 63 A. 214, Brehm's Case, 114 Md. 302, 79 A. 592, Hickox's Case, 104 Md. 659 65 A. 434, and Winter's Case, 115 Md. 69, 80 A. 651. While the plaintiff in this case stopped his wagon about 25 or 30 feet from the crossing in order to permit the north-bound car...