Baltimore Traction Co. v. Helms

Fowler, J., delivered the opinion of the Court. On the 19th of March, 1895, the plaintiff boarded a car of the Baltimore Traction Company bound east on Fort avenue. On this avenue there is another track of the same company which is used for its cars going west". The track used by the cars running east is on the south side, and that used by the west-bound cars is on the north side of Fort avenue. The plaintiff alighted from an east-bound car at or near the corner of Fort avenue and Garrett street, and proceeded at once in the rear of the car he had just left, to walk north across Fort avenue. He was injured by one of the cars of the defendant company moving west. At the conclusion of the testimony of the plaintiff, the defendant asked the Court below to take the case from the jury, and its prayer to this effect having been refused, it offered testimony on its own behalf. At the conclusion of the defendant’s testimony it renewed its request to have the case taken — 523 — from the jury. But the Court again refused so to do, and hence this appeal. There are some other questions presented, but inasmuch as we are of opinion that the plaintiff failed to make out a case for the jury, and is, therefore, not entitled to recover, we will not consider them. Assuming then, the truth of the plaintiff’s testimony as we are bound to do, this being the legal effect of the defendant’s first prayer, what is the testimony of the plaintiff? When the car in which the plaintiff was riding was approaching Garrett street, he notified the conductor to stop. The car having stopped, he left it; and what subsequently happened was described by him in his examination in chief, his cross-examination and in his answers to a series of questions put to him by the learned Judge below. It seems to us, however, that according to his own account of this unfortunate occurrence there is ample evidence to show that he was injured by reason of his own carelessness and reckless disregard of his own safety. In his cross-examination he said: “ As I stepped off I looked down (east) Fort avenue to see if a car was coming in that direction, and I saw none coming; but unluckily for me there was one coming, to my sorrow, and I started across the track, and I was just as deliberate as you are now, and hearing no warning of any approaching car I was struck; the first thing I noticed was when the motorman hollered “ ‘ Look out,’ and his voice hadn’t done sounding when I was hit.” “ That if he had stopped when he alighted from the east-bound car and waited for it to pass until his line of vision would cover the west bound track, no accident would have happened.” The Court then asked the following questions and the plaintiff gave the following answers : “Q. Now, what prevented you, after you passed around the car, from looking in time ? Answer. Well, what I mean, your Honor, is, before I alighted from the car I looked in the direction of the cars that came towards the west, and I didn’t see any approaching car, so I was just as cool and deliberate as I could be, thinking there was. nothing, and I stepped right — 524 — on the west-bound track, and just as slow as a man could walk, and before I knew it I was struck. Question. What I want to know is this: You passed around the rear of the car ? Answer. Yes, sir. Question. And when you got around the rear of the car nothing obstructed your vision up in that direction ? Answer. No, sir. Question. Then, if you could have seen the car, and must have seen it if you looked, why is it, as you say, you looked too late? Answer. Why, because, your Honor, the car was running at such a high rate of speed it got on me before I knew it, or before I could realize it. Question. But you would have seen it if you had looked around; it is a straight track there. Answer. Yes, sir, it is a straight track there from the bridge and for a mile further on. Question. In your examination in chief, you said that when you alighted from the car you stopped, looked and listened ? Answer. Yes, sir. Question. Now, when you crossed behind the car and before you reached the west track, did you or not make an effort to look up ? Answer. I had my head turned towards the west bound track all the time; I was looking for a car to come, but saw none. Question * * * *. What I want to get at is this: the witness said he was walking deliberately. What I want to know is, if that is the case, why, when he got around •the car to where nothing obstructed his vision, he didn’t stop, or what prevented him from stopping at once?” Whereupon the counsel for plaintiff informed the Court that the plaintiff “ at that time was right on the three-foot space ”—referring to the space between the east and westbound tracks. In answer to. further questions the plaintiff — 525 — answered that he could not possibly have stopped on the three-foot space, and that he had his foot inside the rail when the car hit him ; that he had just merely stepped over the rail, and that he heard no bell. By the well-settled law applicable to the class of cases to which this belongs, it is not enough for the plaintiff to prove the negligence of the defendant, and the injury which followed, but he is bound also to establish by satisfactory proof, before he can recover, that he was himself free from negligence and exercised ordinary care to avoid the consequences of the defendant’s negligence. The right to recover depends upon two distinct propositions of fact: First, the negligence of the defendant, and second, the exercise of due and ordinary care by the plaintiff, and if he failed to prove negligence on the part of the defendant, or if it appear from his own evidence that he was guilty of negligence directly contributing to the injury, he cannot recover. Assuming then, as we must from the plaintiff’s testimony, that the defendant was guilty of negligence in running its car in violation of the city ordinance at the high rate of speed testified to, was the plaintiff guilty of such contributory negligence as will prevent a recovery ? He walked deliberately from behind a street car across a track on which he knew cars were running at intervals of a few minutes. It fully appears from his testimony that if he had looked, he could have seen the car approaching, and that no accident would have happened. If the circumstances are such that one with normal sight and hearing could see and hear then, his duty requires him to use his senses to guard against injury by the negligence of others. Steever’s case, 72 Md. 159. And this rule applies generally to every situation in life. In Price's case, 29 Md. 420, Alvey, C. J., quotes the terse and forcible remark of Lord Ellen-borough : “ One person being in fault will not dispense with another’s using ordinary care for himself.” And therefore if the plaintiff by ordinary care could have avoided the consequences of the alleged negligence of the — 526 — defendant, and there can be no doubt from his own testimony that he could have done so, and failed so to do, he would be the author of his own misfortune, and therefore no action would lie. Prieds case, supra. Whatever may have been the opinion of the plaintiff as to his power to stop and look before crossing the track, the fact is that he • did not take this precaution. Nor is there anything in the evidence to show that he or any man with ordinary powers could not .have both stopped and looked in time to avoid injury. It does not appear, however, that he made any effort to do either, for he was. in the centre of the track before he saw the car. If a witness who can see testifies that he looked and did not see an object, which if he had looked he must have seen—such testimony is unworthy of consideration. And likewise when a witness testifies, as did the plaintiff in this case, that if he had stopped in the space between the tracks he could have stood there in safety while the car passed him, it is to no purpose that, if subsequently he should be willing to stultify himself, he declares that under the circumstances it was impossible for him to stop in time to avoid the .injuiy. Such testimony is so contradictory and inconclusive that it is unworthy of consideration, and should not therefore be allowed to go to the jury. The public and street, railway companies, as we have frequently said, have equal rights to use the streets of a city for purposes of travel, and the obligations of employees of the latter fo keep a constant lookout for persons crossing or approaching the tracks must be faithfully performed not only at the crossings, but along the whole line of such railroad within the city limits, for the reason that persons have the right to cross the streets at any .point along the thoroughfare. Cook v. Traction Co., 80 Md. 551; West. Md. R. R. Co. v. Kehoe, 83 Md. 434; Lake Roland Co. v. McKewen, 80 Md. 593. But while in the exercise of this right of crossing the public street pedestrians should use their, senses to. ascertain whether, a car is approaching. — 527 — Buzby v. Philadelphia Tracticni Co., 126 Pa. St. 559, was a case almost precisely like the one at bar. The Court say in that case, “ The plaintiff, a passenger upon a cable car, got out on the north side, where he was in safety. Without waiting for the car to move or looking to the west, from which direction danger was to be apprehended, he turned sharply around the rear of the car and started to cross the street. There was room between the tracks for him to stand in safety and see the whole track. Instead of looking, he stepped upon the south track and was struck and injured by another car going east. He was properly non-suited upon the ground of contributory negligence.” * * “ Due and ordinary care is to be exercised in crossing public streets, as in all other transactions of life. Even upon the sidewalk, specially devoted to foot passengers, a man is bound to look where he is going, and this duty is still more imperative when he is about to cross the middle of the street, where horses, wagons and cars have equal rights with himself, and where he is bound to take notice of such other rights, and to use his own with due regard thereto.” Buzby v. Phila. Traction Co., 126 Pa. St. 559. A similar view prevails in Missouri, Michigan, New York, New Jersey and Louisiana. Meyer v. Lindell Ry. Co., 6 Mo. App. 301; Kelly v. Hendricks, 26 Mich. 261; Scott v. Third Ave. R. R. Co., 59 Plun. 456; Davenport v. Brooklyn City R. R. Co., 100 N. Y. 632; Sheets v. Conolly St. Ry. Co., 24 Atl. Rep. 483; Newark Pass. Ry. Co. v. Block, 22 L. R. A. 374; S. C. 55 N. J. Law, 606; Schulte v. New Orleans C. & Lake R. R. Co., 44 La. An. 509. It is properly said in some of the cases that the failure to stop and look before crossing a street railway will not, under all circumstances, per se constitute such contributory negligence as will prevent recovery. Burbridge v. Kansas Cable R. R. Co., 36 Mo. App. 670; Mc Claine v. Brooklyn R. R. Co., 116 N. Y. 465. Nor do we by any means intend, by what we have here said, to lay down the same rule of conduct as always applicable to the crossing of tracks of steam and street railways. — 528 — The legal duties and correlative rights in the two cases are not the same, and what might be negligence in the one case, would in the other, under some circumstances, be held to be but the exercise of a legal right. It is not necessary in this case to formulate any general rule as to the degree of care required of persons crossing highways in cities, for, as we have seen, the plaintiff failed to exercise any care whatever and seeks to avoid the legal effect of his own misconduct by relying upon the negligence of the defendant. (Decided January 5th, 1897). But even if it were desirable to attempt to lay down any general rule, it would be extremely difficult to do so. “The duty devolving upon one using a highway,” say the Court in Block's case, supra, “for passage on foot varies with circumstances, which are infinitely various. It may be one degree when the highway is a quiet country road, and of another degree when it is the crowded street of a great city. It may differ at different hours of the day with respect to different vehicles, and the different rates of speed at which they are moving, and by reason of different opportunities of observation. It is imppssible to classify these variant circumstances, and to lay down a precise rule as to the degree of care required in each case or class of cases.” It is enough, however, for the purposes of this case to say that one who deliberately walks out from behind a street car from which he has alighted and attempts to cross a public street without using his powers of observation and is injured by an approaching car, which injury could have been avoided by the use of the most ordinary care, will not be allowed to recover. Judgment reversed, without a new trial.