Appeal from the Baltimore City Court; Manley, J.
Hammond, Prescott, Horney, Marbury and Sybert, JJ. Prescott, J., delivered the opinion of the Court.
After a jury in the Baltimore City Court had rendered a substantial verdict in favor of a sixty-three year old pedestrian for injuries sustained by him as a result of alleged negligence on the part of one of the defendants, who was the other defendant's employee, in the operation of a streetcar, the trial judge granted the defendants' motion for a judgment, n.o.v., and the plaintiff has appealed.
At Walbrook Junction in Baltimore City, three streets converge. Clifton Avenue, fifty feet wide (all measurements hereafter mentioned will be approximate), runs almost due east and west. From a northwesterly direction and at about a thirty degree angle, Windsor Mill Road comes into Clifton; and also from a northwesterly direction, but from an angle of some seventy degrees, Garrison Avenue converges into the intersection just mentioned. Traffic in the intersection is not controlled by lights; there is a stop sign, facing east, on the northern side of Windsor Mill Road, thirty feet east of the eastern boundary of Garrison Avenue; a stop sign, facing east, in front of the waiting room close to Windsor Mill Road; and another facing southbound Garrison Avenue traffic almost in the middle of the intersection.
At the junction of these three streets and between Clifton Avenue and Windsor Mill Road, the appellee, The Baltimore Transit Company, owns a four-sided parcel of ground: its south boundary of 150 feet parallels Clifton Avenue; its east boundary of 41 feet is slightly west of, and parallel to, an extension of the west side of Garrison Avenue; the north line of 150 feet is roughly the southwestern boundary of Windsor Mill Road; and the fourth line joins the first and third lines, but has no bearing upon the issues herein involved.
Facing its eastern property line and fifteen feet therefrom the Company maintains a 20 by 40 foot waiting room, which has a "sidewalk" on the front and sides thereof. It also maintains four tracks for the operation of its streetcars in the bed of Clifton Avenue, which approach the waiting room and the
intersection from the east, and, shortly before reaching the intersection, veer to the northwest where they continue along the beds of both Windsor Mill Road and Garrison Avenue. The switches which determine whether a streetcar proceeds up Garrison Avenue or Windsor Mill Road are located in the intersection, 75 feet from the front of the waiting room.
The Company, in the regular conduct of its business, operates both streetcars and buses for the carrying of passengers for hire. On the day of the accident, the appellant had boarded a bus, which brought him easterly on Clifton Avenue and deposited him, safely, upon the southern sidewalk thereof, across the street from the waiting room. He had paid his fare and had received a transfer, entitling him to travel farther upon another bus, which would take him "downtown." He intended to board this bus by crossing Clifton Avenue to the north to the waiting room, going around the sidewalk thereof, and then proceeding northwesterly across Windsor Mill Road to the northwestern corner of Garrison Avenue and Windsor Mill Road, which was the regular stopping place for the bus he desired to catch. When he got to the northern tracks of the Company in Windsor Mill Road, he was struck by one of its streetcars, proceeding in a westerly direction, and seriously injured.
Lengthy and elaborate arguments relative to the question of primary negligence are contained in the briefs, but, as we view the case, it is unnecessary to determine that question; because we think, as did the learned trial judge, the plaintiff's own evidence clearly discloses that he was guilty of contributory negligence as a matter of law. Hence, we shall assume, without deciding, there was primary negligence on the part of the appellee, and proceed with the question of contributory negligence. When reviewing the correctness of the trial court's ruling in granting a motion for judgment n.o.v. for the defendant, the evidence must be viewed in the light most favorable to the plaintiff, all conflicts therein must be resolved in favor of the plaintiff, and we must assume the truth of all evidence and such inferences as may, logically and legitimately, be deduced therefrom, which tend to support the plaintiff's right to recover. And where the defendant
offers evidence to establish some fact or facts by way of defense, such evidence may be considered if the truth of the facts is conceded or undisputed, but not if such evidence is merely uncontradicted, when its truth is controverted. Smith v. Bernfield, 226 Md. 400, 174 A.2d 53.
The plaintiff testified he reached a point in front of the waiting room on the walkway where he stopped for a short period of time; he intended to cross Windsor Mill Road to the bus stop mentioned above; he was aware that crossing this street necessitated his passing over both the eastbound and westbound tracks; while he was standing stopped on the walkway, he took a good look at the streetcar (about 75 feet east in the intersection), which was then at the switch point, where streetcars usually stopped, moving very slowly; he looked to his left, and not observing any traffic approaching from that direction, stepped off the walkway into the street; he "saw a few people cross [ahead of him] and [he] went after them"; after looking to his right once and seeing the streetcar, he did not thereafter look to his right and he ...