United Rys. & Electric Co. of Baltimore v. Perkins

• Decision Date: 20 January 1927
• Docket Number: 53.
• Citation: 136 A. 50,152 Md. 105
• Parties: UNITED RYS. & ELECTRIC CO. OF BALTIMORE v. PERKINS.
• Court: Maryland Court of Appeals

136 A. 50

152 Md. 105

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

No. 53.

Court of Appeals of Maryland

January 20, 1927

Appeal from Baltimore City Court; Walter I. Dawkins, Judge.

"To be officially reported."

Action by Everett R. Perkins against the United Railways & Electric Company of Baltimore and another. Judgment for plaintiff, and named defendant appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and PARKE, JJ.

Philip S. Ball and J. Pembroke Thom, both of Baltimore, for appellant.

Allan Cleaveland and Horton S. Smith, both of Baltimore, for appellee.

BOND C.J.

This appeal is from a judgment against the railways company in favor of one who alleged and testified that, while attempting to board an approaching street car, he was struck by an automobile, which he did not see, approaching beside the car and thrown toward the car, so that his foot was injured under the wheels. The testimony in the case is conflicting. The motorman, the conductor, and a passenger on the street car testified to complete ignorance of the plaintiff's presence in the street as they passed the place designated and ignorance of the automobile mentioned, or of any accident, and said that the car had proceeded along by the place at its ordinary speed, and without any incident out of the ordinary. And the evidence for the plaintiff is attacked as incredible in some particulars. But, while impossible statements might be disregarded, yet, so far as the evidence affords any tendency to sustain the plaintiff's action it is, of course, not to be questioned on appeal, and its credibility and weight should have been reviewed rather on the motion for a new trial.

Exceptions were taken to bring up for review in this court several rulings on evidence, but we understand that none of these are now pressed. They were not argued.

Confining the review to the questions presented on the prayers for instructions, then we have this evidence for the plaintiff to consider: The accident occurred in the center of North avenue, one of the widest streets in Baltimore, at Ashburton street, at 10:40 p. m., on the night of February 24, 1924. There had been a light fall of snow, but this had stopped, leaving the ground lightly covered. The neighborhood was well lighted, so well that the plaintiff thought a man standing in the street waiting for a car could see two blocks either way, and presumably be seen for that distance. The driver of a taxicab coming a block or more behind the street car testified that from the distance of a block or more he did see the plaintiff as the latter advanced to board the street car. When the car had approached at the distance of half a block from the street intersection, the plaintiff left the sidewalk, and walked out, signalled the car, and, as it reached him, placed himself in a position to enter it. He did not see any automobile, or hear any automobile horn. Yet there was an automobile proceeding side by side with the street car, at the front end of the car where the motorman could see it, and the two moving vehicles had been proceeding thus, side by side, for a block or more. Neither the car nor the automobile stopped, and the automobile struck the plaintiff and threw him toward the car. He was bruised only slightly; the substantial injury having been that to the foot. The driver of the automobile, one Harrington, was sued jointly with the railways company, but he made no defense, and did not testify, and there is no appeal by him. According to this evidence, his running into the waiting passenger was negligence that can hardly be distinguished from a willful act, unless upon the supposition that he had lost his senses for the time being.

There was testimony of excessive speed on the part of both the street car and the automobile. The plaintiff himself merely inferred from the accident that the car must have been going fast. In Harrington's automobile there were, besides himself, three young men who had spent the evening at a dance hall, where Harrington also had been, and who, after having missed this street car, had been invited by Harrington to ride with him to Madison avenue to catch a car there; and one of these three young men, Haines, who sat on the rear seat of the automobile, was produced as a witness on behalf of the plaintiff, and said both the automobile and the street car were racing, hitting up a pretty good speed. It does appear questionable, as the appellant argues, whether Haines meant that the motorman and the driver of the automobile were engaged in a contest of speed at the time. When counsel asked him, "You say they were racing?" he answered, "Hitting it up at a pretty good speed, you know; I cannot judge the speed." And the testimony in support of any inference that there was a contest by both sides is found almost altogether in repetitions and explanations of counsel. But the witness added, later in his testimony, that a place further back on the street "is where we started to race; to keep up with each other." And, in answer to further questions, he said that the motorman glanced out every once in a while at the automobile, going down hill. The witness was not cross-examined on his use of the word "racing," and in this respect, as in some other respects, the testimony did not develop the facts as fully as might now be desired, but we think that, taking it as it is, the plaintiff was entitled to have this testimony submitted to the jury as possibly some evidence to the effect that, as the car and the automobile were coming along the block approaching Ashburton street, they were going at a high speed in an effort on the part of the motorman and on the part of the driver of the automobile, both, to keep abreast of each other, possibly to pass each other. Haines said, further, that the automobile, after having struck the plaintiff, passed across the intersecting street and stopped; that, if necessary, it could have stopped in the middle of the street, and would have stopped before if the car had stopped. As Haines was not driving, and said he seldom rode in an automobile, and was not a judge of speed, his statements that this automobile could or would have stopped at the one place or the other are criticized as unfounded conjectures, but they were not objected to when made, and stricken out. Further on the matter of the speed of the moving vehicles, the taxicab driver, coming behind at the distance of a block or more, estimated that their speed at the time of the accident was 35 or 40 miles an hour.

A rule of the company requiring that a car be in control and be brought to a stop to take on passengers signalling to it, and a municipal ordinance limiting the speed of street cars to 15 miles an hour at crossings in the thickly congested portions of the city, were received in evidence, against objections that they were irrelevant.

Obviously the foremost question on these facts is whether the injury can be said to have been caused by any negligence of which the motorman may have been guilty. And the appellant, on this ground, resisted the granting of prayers of the plaintiff for instructions of the jury, and requested that a verdict in its favor be directed. The mere existence of negligence at the time and place of an injury does not give a right of action. The injury must have been...