61 A. 138 | Md. | 1905
This is an action to recover damages for the injury caused by the alleged negligence of the United Electric Railways of Baltimore City.
The Court below at the termination of the plaintiff's testimony withdrew the case from the jury and instructed them to find a verdict for the defendant. The judgment being against the plaintiff he has appealed, and the only question presented by the record is the propriety of the ruling above mentioned.
The facts, conceded, of course, by the defendant's demurrer to the evidence, are that the plaintiff, George Garvick, together with two companions, was walking along the south-bound track of the defendant company — which are laid on the side of the Falls road. When they had nearly reached Cold Spring lane which is just outside or just within the city limits, a car came along going south in the same direction in which *242 they were walking. We give the plaintiff's testimony: "I am the plaintiff. Between five and six o'clock, July 23rd, 1903, on my way home from Roland Park, I was about at Cold Spring lane coming towards the city. As we were coming along, the car came along. We were on the track, and so when a gentleman said "I believe thereis a car coming," I started to get off the track, and just as Igot outside the track it struck me in the back and knocked me down. Right here (Indicating over the left hip to the back.) At the place where the accident happened the tracks are on a level with the street. When I stepped off the track I was standingup. I don't know what part of the car struck me. I did not hear any bell at all. The warning spoken of came from Mr. McKinny. When he said the car was coming I tried to get off the track. I stepped to the right. Mr. McKinney stepped to the left. Both ofthe gentlemen with me stepped to the left and I went to the right.
John T. McKinny, one of the plaintiff's companions, testified *243 as follows: "I knew Mr. Garvick from the time he was working at Roland Park; I was with him at the time of the accident; we werecoming up from Cold Spring lane coming south, up the gradetowards the city limits, and were all three walking along; I was walking in the middle and Mr. Stanbaugh was on the right handside, and Mr. Garvick on the left, and we were talking and I looked back and said; Look out, there is a car coming, and Mr. Stanbaugh and I stepped to the left and Mr. Garvick to the right; I didn't see the car strike him, but I saw him getting up off the ground after the car passed; when I gave the warning I saw Mr. Garvick step over to the right; when he was struck the car wasbetween Mr. Garvick and me; the car was not very far when I hollered; I just looked back and said: Look out, a car iscoming, and Mr. Stanbaugh and I stepped off, and Mr. Garvick hestepped to tke other side; I don't think the car was comingfast; I can't say what gait — as they generally come up grade; I can't say the car was coming fast or slow either; I can't tell whether Mr. Garvick stepped fast or slow, as he stepped off the track, because I was getting out the way myself; the tracks where the accident occurred are about even with the street; when I first saw Mr. Garvick after the car passed, he was on his hands and knees getting up; I can't say positively how far the car was from us when we attempted to get off the track; the car was further than that door of this room, when I hollered; I don't wait long for a car to get that close to me before I try to get out of the way, if I see it; Mr. Garvick stepped off the same asI did, only on the opposite side. Q. State his manner of getting off the track? A. That is a question I don't see how I can answer; I couldn't tell whether he stepped fast or slow, because I was getting out of the way myself. Q. At what speed were you moving to get out of the way? A. I wasn't going very fast, but I was going fast enough to get out of the way.
Calvin Stanbaugh, plaintiff's remaining companion, testified thus: "I live at 507 Hickory avenue, in Woodberry; I heard the testimony of Mr. Garvick; we were all coming home that evening, walking down the track, and I was walking on the north-bound track coming down, and Mr. McKinny and Mr. Garvick were in the south-bound track, and I heard some one say, look out, herecomes a car, and as the car passed by I saw Mr. Garvick getting up, but what part of the car struck him I couldn't say; I don'tthink the car was coming fast, it was up grade; Mr. Garvick said he was hurt right smart; when I saw Mr. Garvick getting up, I don't suppose the car was over ten yards at the outside; I didn't pay much attention, but I know the car stopped; if the bell of the car rang, I didn't hear it, because we were walking along talking; the tracks where the accident happened were about even with the street."
It thus appears that the plaintiff and one of his companions were walking south along not across the defendants south-bound track and that the other member of the party was walking in the same direction along the north-bound track. The two questions presented by the state of facts disclosed by the record, are first, does the plaintiff's testimony afford any legally sufficient evidence of negligence on the part of the defendant or its servant, the motorman, and secondly, even assuming there was such evidence, was the plaintiff guilty of such contributory negligence as, under all the circumstances of the case, will prevent a recovery.
(I) Was the defendant or its motorman guilty of negligence? Before this question can be answered in the affirmative it is incumbent on the plaintiff to adduce some definite affirmative proof. Negligence of the defendant cannot, in a case like this, be inferred from the mere happening of the accident. It has been repeatedly held by this Court that the negligence of a defendant will not be presumed, nor will a surmise or a scintilla of evidence that there may have been negligence on his part justify a Court in sending a case to the jury. There *245
must be some reasonable evidence of well defined acts of negligence or breach of duty on the part of the defendant, causing the injury complained of. Fletcher v. UnitedRailways,
(b) The second ground to show negligence on the part of the defendant is the alleged high rate of speed at which the car was running. The evidence affords no foundation for this contention. No witness testified the car was running at an illegal rate of speed, but on the contrary both of the plaintiff's companions declared that the car was coming up grade and was not coming fast. *246
(c) But in addition to this evidence it is settled, in this State, at least, and generally, that where a party is discovered on the track of a railroad in the full power of locomotion and no impediment to his escape, those on the train may well act upon the assumption that he will use his senses for his protection and get out of the way of danger before he is struck. State, useSchroeder v. B. O. Rd. Co.,
(II) But assuming ex gratia that the defendant was guilty of negligence, the record affords abundant evidence of the contributory negligence of the plaintiff.
In the first place, if it be conceded that the plaintiff was legally on the defendant's tracks we do not think the cases cited by his counsel to sustain that proposition are at all applicable to the facts of this case. Cook v. Balt. Trac. Co.,
It follows therefore, that the judgment appealed from will be affirmed.
Judgment affirmed.
(Decided June 20th, 1905.)