United Rys. & Elec. Co. v. Watkins
| Decision Date | 23 November 1905 |
| Citation | 62 A. 234,102 Md. 264 |
| Parties | UNITED RAILWAYS & ELECTRIC CO. OF BALTIMORE v. WATKINS. |
| Court | Maryland Court of Appeals |
Appeal from Court of Common Pleas; George M. Sharp, Judge.
Action by Stephen Watkins against the United Railways & Electric Company of Baltimore. From a judgment for plaintiff defendant appeals. Affirmed.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE SCHMUCKER, JONES, and BURKE, JJ.
Fielder C. Slingluff, for appellant.
Robert F. Leach, Jr., for appellee.
This is another personal injury case, and the only questions which we are required to consider arise on the prayers for instructions to the jury. The facts are few, and there is no conflict in the testimony. It appears that the appellee, who is a farmer residing in Howard county, was driving a four-horse wagon, loaded with furniture, along Carey street in Baltimore City. Carey street intersects Baltimore street at right angles. Calhoun street, which also crosses Baltimore street in the same way, is west of, and one block distant from, Carey street. The double tracks of the United Railways & Electric Company of Baltimore are located on Baltimore street. The north track is used by street cars going west on Baltimore street, and the south track is used by the cars going east on that street. The appellee was driving in a southerly direction; that is, towards Baltimore street. His course took him across the double tracks on Baltimore street at the intersection of that street with Carey street, as he intended to continue on down the last-named street towards his destination after crossing Baltimore street. When he emerged from Carey street into Baltimore street, he saw a car of the appellant company a square distant, up at Calhoun street. The car was on the south track, going east, and therefore going towards the appellee. He concluded that he would have ample time to cross the tracks before the car could traverse the distance separating it, and his team and he therefore drove onward without waiting for the car to pass. Midway between, and parallel to, Calhoun and Carey streets there is an alley opening into Baltimore street. When the car reached the alley, several of the witnesses have testified that it materially increased its speed. At that juncture the lead horses were just up to or perhaps just upon the north track, not the track on which the car was approaching, and the appellee pressed forward, and the car struck between the lead horses and the wheel horses, pushing the wagon around at right angles to the direction it was proceeding, and knocking down and injuring three of the horses and seriously wounding the appellee. The distances from Calhoun street to Carey street, and from Calhoun street to the alley, are not given in the record. There was testimony adduced tending to show that the motorman upon reaching the alley turned on the electric current, instead of applying the brakes, though descending a slight downgrade whereby a collision became, not only imminent, but inevitable, and that the car then commenced to run and continued onward at a unusually high rate of speed until it struck the team. On this state of facts the appellant asked the court to withdraw the case from the consideration of the jury, on the ground, first, that there was no evidence in the case legally sufficient to entitle the plaintiff to recover; and, secondly, because, according to the uncontradicted evidence in the case, the plaintiff was guilty of negligence directly contributing to the accident complained of.
As we have often said, and now repeat, negligence, both primary and contributory, is essentially, relative, and comparative, and not absolute. Whether it exists or does not exist in either form in a given case must necessarily depend upon the circumstances of that case. In every instance it must in the last analysis be some breach of the duty owed by one person to another, and, as the duty, whose breach is relied on as actionable negligence, varies under different conditions the conditions must be known before negligence can be predicated of any act producing an injury. There is...
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