Lake Roland Elevated Railway Co. v. McKewen

Roberts, J., delivered the opinion of the Court. This, action was brought in the Court below to recover damages from the defendant company for its alleged negligence. A satisfactory statement of the facts contained in the record will be found in the reporter’s notes of testimony placed at the head of this case. The record presents but one exception, which is taken by the defendant to the action of the Court in granting a special instruction of its own, and also the fourth prayer of the plaintiff, and in rejecting the first, second, third, fourth, fifth, sixth, eighth, ninth and tenth prayers of the defendant. The plaintiff’s fourth prayer announces the rule of damages, which was. not discussed at the hearing, and if controverted we fail to discover any objection to it. The — 601 — instruction given by the Court is quite as favorable, if not more so than under the testimony in the record the defendant was entitled to have. This instruction does not leave the question of contributory negligence on the part of the plaintiff- to be found by the jury, but declares as matter of law that in what he did he was guilty of contributory negligence, and concludes, “ and therefore the plaintiff is not. entitled to recover, unless the jury believe from the evidence that the motorman of the car in question, after he saw, or by the exercise of due care might have seen, that the plaintiff was approaching the track and was apparently about to cross in front of his car, and that the attempt to do so would be dangerous to the plaintiff, might still, by the exercise of reasonable care in the management of said car, have avoided the collision, but failed to exercise such care.” The objection of the defendant in this appeal is mainly to the Court’s instruction and not so much to the refusal of the Court to grant its prayers. The Court’s instruction upon the subject of the plaintiff’s contributory negligence is, as already stated, quite as favorable to the defendant as it had any right to expect. The Court was clearly right in rejecting the defendant’s first and second prayers, for the reason that the Court should in no case take the question of negligence from the jury, unless the conduct of the plaintiff relied on as amounting in law to contributory negligence, is established by clear and uncontradicted evidence. McMahon's case, 39 Md. 449. The conflict of testimony in the record justified the Court’s action in this respect and left no other course to be rightly followed. After the Court’s special instruction, the fourth, fifth, sixth, eighth and ninth prayers were unnecessary and well calculated to mislead the jury. 'The doctrine announced in the concluding portion of the Court’s special instruction, to which exception is taken, has been so frequently and so thoroughly discussed and affirmed by this Court in all its — 602 — legal relations to the subject of negligence, that there remains nothing further to be said, except to repeat that we have repeatedly approved and applied the doctrine of the instruction in numerous cases, notably in McMahon's case, supra; McDonnell's case, 43 Md. 551; Green's case, 56 Md. 92; Wallace's case, 77 Md. 435; Arnreichs case, 78 Md. 589; Coleman’s case, ante, p. 328, decided Dec. 19, 1894. The tenth prayer asserts a proposition which has never been declared to be law in this State, and which, for very obvious reasons, we think is not entitled to the sanction of this Court. The Court below was asked to say “ that a street car has a right of way on that portion of the street upon which alone it can travel, paramount to that of ordinary vehicles.” The doctrine had at one time found expression in some of the Courts of this country, but a just sense of criticism has caused it to be abandoned. It would be both unjust and unwise to permit such a doctrine to prevail in our Courts. It makes no material difference how street cars are propelled, whether by animal power, electricity, or otherwise. The vice of the doctrine contended for does not involve the subject of the motive power. It is solely a question as to the mutual rights of street car companies and of individual citizens to use the streets of a city. Neither has. a superior right to the other. The right of each must be exercised with due regard to the right of the other, and the right of each must be exercised in a reasonable and careful manner, so as not to unreasonably abridge or interfere with the rights of the other. Omaha St. Ry. Co. v. Cameron (Neb.) 61 N. W. 606; Lyman v. Union R. Co. 114 Mass. 83; Adolph v. Central, &c., R. Co., 65 N. Y. 554; Connelly v. Trenton Pass. Ry. Co. Consolidated, N. J. Err. App. 29 Atl. R. 438. Since the preparation of this opinion the case, of Cooke v. The Baltimore Traction Company has been decided by the Court, ante, p. 551. The opinion in that case contains a careful review of the questions presented on this appeal and dis — 603 — penses with the necessity for further consideration of the case. The judgment will be affirmed. (Decided March 26, 1895.) Judgment affirmed with costs.