United Rys. & Elec. Co. of Baltimore City v. Seymour

• Decision Date: 17 January 1901
• Citation: 48 A. 850,92 Md. 425
• Parties: UNITED RAILWAYS & ELECTRIC CO. OF BALTIMORE CITY v. SEYMOUR.
• Court: Maryland Court of Appeals

48 A. 850

92 Md. 425

UNITED RAILWAYS & ELECTRIC CO. OF BALTIMORE CITY v. SEYMOUR.

Court of Appeals of Maryland

January 17, 1901

Appeal from superior court of Baltimore city; Henry D. Harlan Judge.

"To be officially reported."

Action by Edward Seymour against the United Railways & Electric Company of Baltimore City. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, SCHMUCKER PEARCE, and JONES, JJ.

William S. Bryan, Jr., and Eugene H. Harris, for appellant.

R.R Boarman, for appellee.

PAGE J.

The two main questions that arise in this case are: (1) Is there any evidence to go to the jury of negligence on the part of the appellant? And (2) did the court err in refusing to instruct the jury that the appellee was guilty of contributory negligence? Taking up the first of these, it is necessary to present a statement of the principal facts of the case. On the 7th day of September, between 7 and 8 o'clock,--it being then dark,--the appellee was driving a wagon loaded with 1,013 feet of lumber on the north-bound railway tracks of the appellant along and over Roland avenue, in Baltimore county. While so traveling, a car of the appellant moving in the same direction, came upon him from the rear, whereby his wagon was broken, his horse thrown down the embankment and injured, and he himself was hurt. At the point where the accident happened, the appellant's tracks, of which there are two sets,--the one for southbound and the other for north-bound cars,--are in the bed of Roland avenue. The rails are not exactly in the center of the road, but a space, the length of a "walking stick," separated the north and south bound tracks. On the right hand, looking north, was a narrow and possibly (the testimony is not clear) a sandy and heavy dirt road. Whether the public have a right to use the tracks at that point, or not, for the purpose of driving over and along them, the evidence is not clear. Both sides however, seem to concede that it had, and the case was argued upon that hypothesis. Whether it had or not, however, is not very material; for it is clear that it was the habit of the public to so use them, presumably without objection from the railway company, since it had laid at that point the flat rail, which makes a convenient and comfortable roadway for the passage of wheeled vehicles. The appellee testified that people did not "attempt to drive out on the dirt road unless the car track was in use," and that they used the dirt road in preference "only when the vehicle did not fit the track." The point, therefore, where the accident occurred, was one where, with the knowledge of the railway company, the public was in the habit of driving along the rails; and, if such was the fact, it was the duty of the company to handle its cars with such reasonable care as such a situation demanded. The night was not only dark, but the particular situation intensified the darkness. The accident happened at the foot of a hill, "in a hollow," and to the north and south were heavy grades. That down which the wagon and car came was very considerable. It was estimated by a witness to be about 25 in the 100 feet. The distance from the top of the hill down this grade, the motorman testified, was "pretty close to three-quarters of a square." In this hollow and up the grade there were trees on both sides of the road, making it, as one witness said, "terribly dark." Added to this, there were also clusters of lights at Heath Brook, which the motorman testifies cast their light diagonally across, and not down, the track, and so added to the gloom, and further prevented him from seeing through them, along and down the track. For these reasons it was impossible for the servants of the company to see the wagon until the car was but a few feet distant from it. The situation, therefore, that was presented to the motorman when he reached the top of the hill was that of a steep grade, so obscured in darkness as to prevent his vision from reaching, even with the aid of his headlight, more than a few feet; a flat rail, along which he knew, or ought to have known, the public had been, and still was, in the habit of passing with wagons and other vehicles. What was his plain duty under such circumstances? Obviously, to use such reasonable precautions as were necessary for the protection of any one who might be upon the tracks. There was evidence to show that, instead of reducing the speed so that the car could be stopped within the distance in which a wagon could be seen by the motorman, it was allowed to come down the grade at full speed. About the rate of speed the evidence is conflicting, but there is much testimony going to show that the speed was very fast; and the motorman himself said he was "running at a rate of nine points until he saw the wagon," and that "nine points is the full running speed of the car." "Negligence is essentially relative and comparative, and not absolute. It is intrinsically true that those things which would not under one condition constitute negligence would, on the other hand, under a different though not necessarily an opposite condition, most unequivocally indicate its existence." Cooke v. Traction Co., 80 Md. 555, 31 A. 327. Here, when the car reached the top of the hill the motorman had no right to anticipate that no vehicle would be on the track, and he was unable to ascertain by the use of his eyes and ears, or by any other means at his command, whether or not the tracks were clear. If, therefore, the jury found that under such circumstances he ran his car at full speed on the down grade, through the impenetrable darkness, over the road which he knew the public were accustomed to use in wagons...