Consol. Ry. Co. v. Armstrong , 92 Md. 554 ( 1901 )

This is an appeal from a judgment obtained in the Baltimore City Court by the appellee for damages sustained by him from having been caught and injured between two electric street cars operated by the appellant.

There was evidence tending to prove the following facts. The appellee had been riding westward on Pratt street in a car and alighted therefrom at the intersection of Pratt and Charles streets for the purpose of boarding a south-bound car on the latter street. When he left the Pratt-street car there was a south-bound car standing on Charles street at the north side of Pratt street and a north-bound car standing on Charles street at the south side of Pratt street. He says that he looked for a car on Charles and saw the south-bound one, which he wished to take, but saw no north-bound one. He at once took from the front platform of the car on which he had been riding, "a coolingboard," measuring about 37 1/2 inches long by 20 1/2 inches wide, and started with it in his hands for the south-bound car on Charles street. Instead of going around this car to its west side which was nearest the sidewalk and out of the way of other tracks, he went directly across Charles street to the east side of the car next to the north-bound track and from that position handed his cooling-board over the gate at the front platform of the car to its motorman. Just as he finished putting the board over the gate the north-bound car which was then in motion reached him and he was caught between the two cars and injured.

The evidence as to the precise manner in which he got between the two cars is explained by the witnesses as follows: The motormen on both cars, the conductor of the north-bound car, and a witness who was standing at the front of that car, all testified that when the north-bound car reached the plaintiff he was standing in a safe place on the step to the front platform of the south-bound car, handing his cooling-board over the gate to the motorman. The witness, who was standing at the front of the moving car, and the motorman, who was receiving the cooling-board, both say that the plaintiff stepped or jumped down between the cars. Both motormen say that they warned the plaintiff to "look out" as the north-bound car was coming up to him, and the motorman on that car testified positively that the plaintiff responded, "all right," to his warning and then stepped up on to the step where the car of the witness could have safely passed him if he had remained in that position. Both the motorman and the conductor of the north-bound car testified that their car was slowly crossing Pratt street with its gong ringing when it came up to the plaintiff.

The plaintiff, although he testified that he "could hardly tell how it happened," that he got between the cars, said, "I saw that the street (Charles street) was clear, when I started over, as far as the south side of Pratt street, there was no wagon or nothing in sight. I hurried across and somebody said "lookout," as I looked out I found that I either had to be picked up by the car or get between the cars." He further testified that while he was putting the cooling-board over the gate of the south-bound car to the motorman, he looked right at the motorman, and did not keep his eye on the north-bound track, and that he heard no gong ring, that just as he got rid of the board the motorman, who was taking it from him, said "lookout," and he cast his eye down and the north-bound car was right on him; that there was then no chance but to get between the cars; that he "had not the least idea that he would not have room there between the cars," and that he got between them and was injured. He was a large fleshy man.

The motorman, who took the cooling-board from the plaintiff, further testified, without contradiction, that when the latter started to go between the cars, he called to him to go around in front of the south-bound car, and that there was plenty of room for him to do so safely as the fender was narrower than the car, but the plaintiff, instead of taking his advice, got between the two cars.

The plaintiff testified in rebuttal that he did not get upon the step of the north-bound car when he handed the cooling-board over the gate to the motorman, but he did not refer to or deny the statements made by the witnesses for the defense that he had answered, "all right," to the warning of the north-bound motorman, or that as he was going between the cars the south-bound motorman told him to go around in front of the fender of his car which was not in motion.

There is but one exception in the record and that was taken to the action of the Court upon the prayers. The plaintiff offered three prayers all of which were granted, and the defendant offered seven prayers, of which the second and third were rejected, the fourth, sixth and seventh were granted, and the first and fifth were granted as modified by the Court.

The plaintiff's second prayer and the defendant's first prayer, as modified by the Court, substantially directed the jury that if they found the plaintiff guilty of contributory negligence that would not disentitle him to recover, if the defendant's motormancould have avoided the accident by the exercise of due care afterhe saw or ought to have seen the plaintiff's peril. Neither of these two prayers was objectionable in the form in which it was granted, if the facts of the case justified the Court in modifying, in the manner just stated, the general doctrine that negligence on the part of the plaintiff contributing directly to the injury complained of will debar his recovery of damages therefor.

The appellant earnestly contended in its brief and at the argument that this Court in its recent decisions, especially inMcKewen's and Appel's cases, 80 Md. 593 and 603, andRifcowitz's case, 89 Md. 338, had gone much further in the use of this modification of the general doctrine than in its earlier cases, and that it had in fact gone so far in that direction as to practically destroy the defense of contributory negligence. He cited Md. Cent. R.R. Co. v. Neubeur, 62 Md. 391, as containing a statement of the views held by the Court on this subject prior to the recent decisions. The fact, however, is, that long prior to the decision of that case the use of precisely the same form of modification of the general doctrine as that employed in two prayers now under consideration had been definitely sanctioned by this Court in N.C.R. v. Price,29 Md. 436; B. O.R. Co. v. Trainor, 33 Md. 554; and Klipper v. Coffey, 44 Md. 128, and it was declared to be "the settled law of this State" in the case of B. O.R. Co. v. Mulligan,45 Md. 494. The modification may be regarded as having originated in the cases of Davis v. Mann, 10 Mees. Wels. 546, andTuff v. Warman, 94 Eng. Com. Law Reps. 573, both of which were cited with approval in Price's and Mulligan's cases,supra.

Neubeur's case was one of a collision at a crossing on a steam railroad and there was evidence that the plaintiff failed to exercise ordinary care in looking up and down the track as he approached it. The lower Court granted a prayer instructing the jury that even if they found the plaintiff guilty of contributory negligence he was still entitled to recover, "unless they further find that the defendant could not by the exercise of care and diligence on its part have avoided such accident." This Court held the prayer bad, because it failed to define with accuracy the relative duties and obligations of the parties under the facts of that case, and left the jury at liberty to regard as negligence on the part of the defendant the omission by it of any one of a number of precautions mentioned in the evidence, some of which it was and others of which it was not legally bound to observe. In defining the doctrine of contributory negligence the Court in that case say: "The general principle, is, that where both parties by their negligence directly contributed to the production of the accident, neither has the right to recover of the other for the injury sustained thereby. But there are exceptions to this general rule; and in cases like the present the exception is that if the defendant or those acting for it had become aware of the perilous situation of the plaintiff, though that peril had been incurred by the negligence or even reckless conduct of the plaintiff, yet the defendant or its agents would be bound to use all reasonable diligence to avoid the accident. But in order that this qualification of, or exception to, the general rule may be successfully invoked by the plaintiff he must show knowledge on the part of the defendant or its agents of the peril in which he, the plaintiff, was placed, and that there was time after such knowledge within which to make an effort to save him from the impending danger."

The difference between the modification of the general principle recognized as proper in Neubeur's case and that sanctioned by this Court in the recent cases is simply that in the former case the defendant was held liable if he could, by the exercise of reasonable care after he became aware of the plaintiff's peril, have averted the accident, and in the latter cases he was held liable if he could have prevented it after he became, or ought to have become, aware of the peril. There is no difference in principle between these two forms of instruction to the jury, for it cannot be seriously contended that when the defendant is in a position from which he ought to see or by the exercise of reasonable care could see the plaintiff's peril, he may avert his face or close his eyes and not see it and then escape liability for an injury resulting from such conduct on his part. As was said by this Court in Cooney's case, 87 Md. 268: "The law will not permit the loss of life or limb or even property to be deliberately and carelessly inflicted, when it could by reasonable care and caution be averted, merely because the injured person was negligent."

This modification of the general doctrine of contributory negligence should not be constantly or indiscriminately used in instructing juries in suits for injuries caused by negligence, but its employment should be confined to those cases in which there is testimony placing the defendant or his agent in a situation affording him an opportunity to discover the plaintiff's peril, by the exercise of reasonable care, in time to avert it. The recent cases of McKewen, Appel and Rifcowitz, to which we have referred, were all cases of injury by electric street cars to persons crossing their tracks at intersecting streets. In both McKewen's and Rifcowitz's cases the car which inflicted the injury was running at a high rate of speed and the evidence tended to show that if the motorman had slackened his speed and held his car well under control as he approached the crossing he could have seen the plaintiff in time to have prevented the accident. In Appel's case there was evidence that the motorman did not use the ample opportunity which he had after he ought to have seen the plaintiff to protect him from injury. In those three cases the evidence plainly called for the form of instruction given by the Court to the jury.

Applying the principles which we have been considering to the case now before us, we do not think it was a proper one in which to modify the general proposition that the plaintiff's contributory negligence barred his right of recovery. He was palpably guilty of negligence which contributed directly to his injury and without which the injury would not have happened. He had, it is true, an equal right with the car to be upon the track, which was laid in a public street of the city, but he went deliberately when encumbered with his awkward cooling-board to the dangerous side of the south-bound car when access to its safe side was unobstructed, and he stood there until he could pass the cooling-board over the gate of the front platform to the motorman and meanwhile kept no lookout for approaching cars on the north-bound track which was almost under his feet.

It is not denied that the motorman of the approaching car saw the plaintiff between the tracks as he came near him. The only question on that branch of the case is whether after seeing the plaintiff he used reasonable care to prevent injury to him. If the testimony of the motorman, to which we have already adverted and which is corroborated by three other witnesses, is to be believed, he gave the plaintiff timely warning and the plaintiff at first heeded the warning and got into a safe place which he, in his confusion, afterwards abandoned. This testimony is only contradicted to the extent that the plaintiff in rebuttal said that he had not gotten upon the step of the car, but he himself had already testified that he could hardly tell how it happened, that he got between the cars and he was evidently much confused at the time of the accident. Furthermore, the uncontradicted testimony of the motorman of the south-bound car was that when he saw the plaintiff about to go between the cars he told him to go around the fender of his car where there was room for him to go in safety. The plaintiff further testified that when he went between the cars he thought there was ample room for him there.

The testimony in the case did not in our opinion justify the Court below in granting the plaintiff's second prayer or in modifying the defendant's first prayer as it did. We further think that in view of the undoubted contributory negligence of the plaintiff, without which the accident would not have occurred and the practical absence of evidence tracing the cause of the injury to negligence of the defendant's agents, the case falls within the principles laid down in State, use of Bacon, v. B. P.R. Co., 58 Md. 485, and the case there cited of Dublin,c., R. Co. v. Slattery, 3 App. Cases, House of Lords, 1166, and the Court below would have been justified in withdrawing it from the jury if an instruction to that effect had been asked for.

We think that the judgment should be reversed without a new trial and for that reason it will not be necessary for us to review the action of the Court below on the other prayers.

Judgment reversed without new trial.

(Decided January 23rd, 1901.)