Foos v. United Railways E. Co. , 136 Md. 540 ( 1920 )

While the appellant's automobile, driven by himself, was crossing the railway tracks of the appellee at the intersection of West Baltimore and Pulaski Streets, in the City of Baltimore, it was struck by an electric street car and damaged. The cost of the necessary repairs is sought to be recovered in this suit. A verdict in favor of the railway company was rendered under an instruction granted by the trial Court on the ground that the plaintiff's own negligence directly contributed to the accident. The case was thus terminated at the close of the testimony offered on behalf of the plaintiff, and the ruling referred to is the only one presented for review by the pending appeal.

The accident occurred in the day time. The plaintiff testified that as he approached Baltimore Street from the north on Pulaski Street, just prior to the collision, his automobile was moving on an upgrade at the rate of twelve miles an hour, and that he sounded his horn and reduced the speed of his car before he reached the corner. He was then on the west side of the street near the curb. Just before reaching the building line on the north side of Baltimore Street he looked toward the east, but his view was obstructed in that direction by a high wall enclosing a lot of ground located at the northeast corner of the two thoroughfares, and also by a row of trees, with low branches in foliage, extending eastwardly along the outer margin of the Baltimore Street sidewalk. After the line of the trees was passed and before the railway tracks were reached the plaintiff could have had a clear view of the tracks to the eastward for the distance of a block. According to his own testimony, he did not avail himself of this opportunity to look for approaching cars, but attempted to cross without taking that precaution, and for the first time saw the westbound car when it was only about fourteen feet distant. His automobile was then crossing the track on which the car was rapidly moving toward him, and it was only by increasing the speed of his motor, and thus almost clearing the track, that he was able to avert a much more serious collision.

There is evidence in the record tending to show that there was negligence on the part of the motorman of the electric car in failing to give the customary signal and in operating the car at an excessive rate of speed as it approached the intersection of the two streets. But the testimony of the plaintiff conclusively proves his contributory negligence. In the exercise of ordinary care he should have looked for approaching cars after he had passed beyond the wall and trees by which his view had been obstructed. An ample opportunity for such an observation was afforded after he entered Baltimore Street and while his automobile was at a safe distance from the railway tracks. In looking for cars only from a place where it was impossible for him to see whether any were approaching he did not discharge his duty either to himself or to those traveling on the street railway. While the plaintiff's right to the use of the street was co-equal with that of the railway company, the obligation to use due care to avoid an accident was reciprocal. United Rys. Co. v. Watkins, 102 Md. 267; United Rys. Co. v. Mantik,127 Md. 200. The fact that the operation of the street car may have been negligent did not excuse the plaintiff from the performance of his duty to take proper precaution for his own safety and that of the railway company's passengers. It does not appear that the collision could have been avoided by the motorman on the street car after he saw, or should have seen, the plaintiff's actual or probable peril. This case differs in that respect from cases likeUnited Rys. Co. v. Ward, 113 Md. 649; Consolidated Ry. Co. v. Rifcowitz, 89 Md. 338, and United Rys. Co. v. Carneal,110 Md. 211, in each of which the negligence of the person crossing the street railway track was held to be insufficient in itself to justify a directed verdict for the defendant, since the evidence admitted of an inference that the accident could have been prevented by the railway company's employees after the danger became apparent.

It is argued that while the plaintiff might have been held to the observance of greater care if he had been attempting to drive over a railway crossing in the country, it was not incumbent on him to take any other precautions than those he actually adopted in this instance before driving his automobile over railway tracks in the city, where the speed of the cars is required to be reduced and under control as they approach the street crossings. In other words, the contention is that in looking for cars only from a point where his view of the tracks was obstructed and in having his automobile under control, the plaintiff exercised all the care that could reasonably be expected under the circumstances, although he admittedly failed to look again when near the tracks and when he could readily have seen and avoided the danger. This view as to the extent of the plaintiff's duty cannot be accepted. The reasons for the distinction between urban and rural conditions in the application of the rule as to due care furnish no support whatever for the theory that it is not the duty of one about to cross the tracks of a railway on the streets of a city to look for approaching cars. Winter v.United Rys. Co., 115 Md. 69.

The present case is very different from that of United Rys.Co. v. Mantik, 127 Md. 197, upon which the plaintiff mainly relies. In that case it was proven that the driver of the motor-truck with which the street car collided in fact looked for cars at the first opportunity after passing beyond a line of trees which prevented an earlier view of the track on the street into which he was about to proceed. The front wheels of the truck, which was moving at moderate speed, were then crossing a gutter at the end of the street he was leaving, and the forward end of the truck was only six or seven feet distant from the nearest rail. As the opinion states: "The chauffeur then for the first time saw an electric car, with a second one attached, coming southwardly towards the crossing at high speed. The leading car was then approximately forty-four feet from the point at which the truck was about to cross. * * * In an effort to avoid a collision the chauffeur turned the motor-truck towards the south, but its momentum, which he said there was not time enough to overcome with the brakes, carried it partly over the west rail of the track and the foremost car struck it in the region of the left front wheel." Upon these facts it was held that there was no such obvious and conclusive want of care and prudence in the conduct of the chauffeur as to justify the withdrawal of the case from the jury on that ground. In the case just cited the chauffeur endeavored to fully perform his duty to exercise due care, while in the case at bar the most important precaution was neglected.

The instruction granted by the Court below was proper.

Judgment affirmed, with costs.