United Rys. Co. v. Biedler , 98 Md. 564 ( 1904 )

The question presented by this case is a narrow one. The appeal is from a judgment recovered by the appellee against the appellant in the Superior Court of Baltimore City for damages for injuries caused by a collision between a carriage in which he was riding and one of the appellants electric cars.

It is admitted in the record and on the briefs of counsel that there is evidence in the case legally sufficieut to establish the existence of negligence on the part of the defendant, in running the car at too high a speed, which directly contributed to the plaintiff's injury. The plaintiff was therefore entitled to recover in the case unless he was debarred therefrom by contributory negligence on his part or on the part of some one for whose negligence he was responsible. The single question presented for our determination is whether the record contains evidence legally sufficient to prove the existence of any such contributory negligence.

The material facts as they appear from the record are as follows: On May 25th, 1901, the appellee upon the invitation of his brother, Dr. H.H. Biedler, rode with the latter in his buggy upon his round of professional visits in Baltimore City. The doctor was an experienced driver and quite familiar with the locality of the accident and his horse was a quiet one. The horse and buggy which he drove were his own property and the appellee was merely his guest and had nothing whatever to do with the management of the horse or vehicle.

At the time of the collision with the car the buggy was going west along the north side of Twenty-third street toward St. Paul street. The doctor, who was driving, sat on the right side of the buggy and the appellee on the left side. As they approached St. Paul street, on which the cars of the appellant run, and when they were about fifteen feet from the building line of its east side the doctor checked his horse and leaned forward beyond the side curtain of the buggy to see, as he testified, if any car were in sight but he neither saw nor heard any in either direction. From the point at which he thus looked he could have seen a car approaching from the north on the south-bound track on St. Paul street about forty or fifty feet before it reached the north side of Twenty-third street. Not seeing or hearing any car he gave his horse a free rein and started to cross St. Paul street, but before he succeeded in getting across the horse and buggy were struck by a car, running very rapidly southerly on the south-bound track, and were dragged to a point about twenty-feet south of Twenty-third street and the appellee was injured.

The doctor, the appellee, and an eye witness of the collision, who was standing at the corner of the two streets when it occurred, all testified that they heard no gong ring on the approaching car, although each of them thought he would have heard it if it had been rung. The appellee further testified that he saw his brother as they neared St. Paul street, check his horse and lean forward in his buggy and look out for the cars before he started to cross, and further that the first warning they had of the approach of the car was a cry from some one to "look out" and that the crash of the collision came almost simultaneously with the cry.

Another eye witness of the collision who at the time was standing on the west side of St. Paul street a short distance north of the corner testified that he heard the gong ring on the car when it was about fifty feet north of Twenty-third street and that the buggy was then in sight coming out of Twenty-third street, and that the motorman was turning the brake endeavoring to stop the car, but did not succeed in doing so until it had reached the steps of the second house south of Twenty-third street.

After the evidence was all in the appellee, as plaintiff, offered four, and the defendant offered thirteen prayers. The Court granted all of the plaintiff's prayers and eight of the defendants and rejected its remaining five prayers. The plaintiff's third prayer which took the defense of contributory negligence on the part of the plaintiff out of the case, presents the real issue in controversy and it formed the basis of the entire argument before this Court. That prayer is as follows: The Court at the plaintiff's request instructs the jury that if they find the facts set forth in the plaintiff's first prayer, and further find that at the time of the accident therein referred to, the plaintiff was an invited guest in said buggy, and that he exercised no control over the driving and the management of the same, but that the said buggy and horse drawing the same was owned by the witness, Dr. H.H. Biedler, and that the said Dr. Biedler was driving and controlling said buggy, that even if they find that the said Dr. Biedler was guilty of negligence in the manner in which he managed and drove said horse and buggy, which contributed to the happening of the accident, that as a matter of law the negligence of Dr. Biedler cannot be imputed to the plaintiff and forms no bar to the right of recovery of the plaintiff in this case against the defendant; and further that there is no evidence in this case legally sufficient to show any negligence on the part of the plaintiff, directly contributing to the happening of the injury complained of.

The first proposition asserted by this prayer is that the contributory negligence, if any there were, on the part of Dr. Biedler, the owner and driver of the buggy at the time of the accident cannot be so imputed to the appellee, who was a mere passenger, as to afford to the defendant an excuse or defense for an injury to him caused by its negligence. The rejection made by this prayer of the doctrine of imputed negligence in cases like the one now under consideration is in entire accord with the previous decisions of this Court. In the case of the P.W. B.R.Co. v. Hogeland, 66 Md. 149, the plaintiff by invitation of her brother-in-law was riding with him in a carriage which together with the horse that drew it were hired by him and were under his exclusive control and direction. The carriage was struck by a passing train when attempting to cross a railroad track and she was injured by the collision. She sued the railroad company for damages sustained by reason of her injury and in the course of the trial the Court rejected several prayers offered by the defendant denying the right of the plaintiff to recover if the jury found that Richardson, the driver of the carriage, had been guilty of negligence directly contributing to the happening of her injury. This Court on an appeal affirmed the action of the lower Court in rejecting the prayers and after a careful and thorough discussion of the whole doctrine of imputed negligence and an examination of the authorities on the subject held that the negligence of the driver could not be imputed to the plaintiff who was, as was the present plaintiff, a mere passenger without direction or control over the carriage or its driver.

In the case of Balto. Ohio R.R. Co. v. Strunz,79 Md. 335, this Court was asked by the appellant to modify the doctrine laid down in Hogeland's case, but it refused to doso saying "It is the generally accepted doctrine of the Courts of this country that the contributory negligence of a carrier or the driver of a public or private vehicle not owned or controlled by the passenger and who is himself without fault will not constitute a bar to the right of the passenger to recover for injuries received. The only principle upon which such contributory negligence could bar the right of recovery is that the driver should be regarded as the agent or servant of the passenger." There is no ground for holding the appellee in the present case to have been the principal or master for it is conceded that he was the mere guest of his brother who owned and controlled both the horse and buggy at the time of the accident.

Nor do we think that there is any evidence in the record from which a fair mind could reasonably infer that the appellee was himself guilty of any want of such care as could reasonably have been expected of a person of ordinary prudence under the circumstances of the case. He knew that his brother was a skillful and experienced driver who had for many years been traversing the streets of Baltimore in just such a vehicle as that in which they were then driving. He saw his brother check his horse as they approached the crossing of St. Paul street and lean forward beyond the side curtain and look and listen and then proceed to make the crossing. From the position in which the appellee sat on the south side of the buggy he could not have seen through the small light in the curtain of the buggy on the north side from which the car was approaching, for his brother sat between him and that light. Even if he had been warned of the approach of the car there is no evidence that he could have escaped from the buggy in time to save himself. At the rate at which the buggy was going, but a few seconds must have elapsed, after he saw his brother who was in charge of the vehicle check his horse and look and listen for a car, before the swiftly approaching car struck them. For him to have attempted at such a juncture to interfere with the driver of the vehicle would have laid him open to the charge of negligence rather than of care. He did not own or control the horse or vehicle and there is no evidence from which it can be reasonably inferred that he could in those few seconds have successfully checked his brother from attempting the crossing which the latter after having checked his horse and looked and listened thought he could safely make. Under these circumstances we are of opinion that no error was committed by the learned Judge below in granting the plaintiff's third prayer.

The appellant in the argument of the case made no serious objection to the action of the Court below upon the other prayers nor do we upon an inspection of the record find any error in such action and we will therefore affirm the judgment appealed from.

Judgment affirmed with costs.

(Decided January 20th, 1904.)