
    JOSEPH HESS, an Infant, by Christian J. Foos, Jr., His Next Friend, vs. THE UNITED RAILWAYS AND ELECTRIC COMPANY.
    
      Street Bailway — Accident at Grossing — Last Clear Chance— Duty to Look and Lisien — Instructions.
    The doctrine of last clear chance is not applicable in favor of one run down by a street car unless the motorman knew or, by the exercise of due care, might have known of such person’s probable peril, in time to avoid the accident.
    That a granted prayer of defendant charged plaintiff with the duty of listening as well as looking, before crossing defendant’s track, held not ground for reversal, since, even granting that plaintiff was not bound to show that he listened, if the jury believed that he slowed down his motorcycle and looked for approaching cars, they could have no doubt that he also listened, there being no evidence that his sense of hearing was impaired.
    That a granted prayer of defendant instructed the jury that plaintiff had the burden of establishing “the state of facts alleged in the declaration,” held not cause for reversal, the declaration alleging in detail the injuries sustained by plaintiff, and his proof sustaining the allegations on that subject being without contradiction.
    
      Decided January 13th, 1921.
    
    Appeal from the Baltimore City Court (Ambiier, J.).
    The cause was argued before Bow, C. J., Briscoe, Thomas, IIener, Stooicbridge, Adkins, and Offutt, JJ.
    
      
      ■James Morfit Mullen, with whom were O. R. Wattemche/idt and Laurie H. Riggs on the brief, for the appellant.
    
      J. Pembroke Thom, with whom was Walter V. Harrison on the brief, for the appellee.
   Urner, J.,

delivered the opinion of the court.

In the trial of this suit for personal injuries, the plaintiff testified that, while driving his motorcycle across the defendant railway company’s tracks at the intersection of Broadway and Fayette Street in Baltimore, the rear wheel of the motorcycle was struck by one of the defendant’s cars, and he was thrown to the ground and seriously injured; that as he approached Fayette Street, going south on Broadway, he had the motorcycle under control and looked both ways on the intersecting street after he passed the building line, but saw no car approaching from either direction, and then proceeded to cross; that when he was on the nearest, or westbound, track, he saw for the first tinte a street car coming at a high rate of speed on the eastbound track; that he was then too close to that track to stop in safety before reaching it, and the only possibility of avoiding a collision was through an effort to cross ahead of the car; that he almost succeeded in clearing the track, but, as the rear wheel of the motorcycle was passing over 'the south rail, it was struck by the fender of the car and the injuries sued for resulted. There was testimony on behalf of the defendant tending to show that its ear was moving at a moderate speed and was being operated with due care at the time of the accident, and that the plaintiff’s motorcycle was driven recklessly in front of the approaching car. The case was submitted to the jury on the issues of primary and contributory negligence, and the verdict was for the defendant.

The only exception in the record has reference to the prayers. Prejudice is mainly alleged to have resulted to the plaintiff from the instructions granted at the instance of the defendant because they disregarded the last clear chance doctrine. No prayer was offered by the plaintiff submitting that theory, and we find no evidence in the case upon which it could be sustained. When the plaintiff first saw the car he says it was so near that it would have struck him if he had attempted .to stop, although his motorcycle was then under control and could have been stopped within a space of six feet. While he stated that he could see no car on E'ayette Street when he passed the building line, and had a clear view of the street in both directions, his observation must have been very casual, for the ear was actually in sight and within a short distance of the crossing at that moment. One of his witnesses testified that the ear was only half a block from the crossing when the plaintiff was about an equal distance from it on Broadway. The car was coming up a heavy grade and could not have been moving at high speed, because the testimony on both sides of the case shows that it stopped within a few yards beyond the point of the collision. The motorman testified that when he first saw the motorcycle it was about eight or ten feet from the car, and coming at such great speed that it ran over the fender before the car could be stopped. Whether the motorcycle was moving as slowly as the plaintiff states, or as rapidly as the motorman describes, it does no't appear that the movement of the ear could have been arrested in time to avoid the collision after the plaintiff’s intention to cross in advance of the ear might reasonably have been anticipated. It would only be in the event that the motorman knew, or by the exercise of due care might have known, of the plaintiff’s probable peril in time to avoid the accident, that the doctrine of the last clear chance would be applicable. The evidence does not prove the existence of conditions which entitle the plaintiff to complain that the principle just mentioned was not embodied in the instructions granted at the defendant’s request.

The facts of this ease are very different from those presented in United Rwys. Co. v. Kolken, 114 Md. 160; United Rys. Co. v. Ward, 113 Md. 649; Balto. Consol. Ry. Co. v. Rifcowitz, 89 Md. 338; and the other cases cited by the appellant. In those cases there was evidence from which it could be found that the motorman might have prevented the accident after he knew, or should have known, of the danger of its occurrence. There is nothing in the record before us to prove that in the exercise of due care the motorman could have averted the collision after he became, or ought to have become, aware of the plaintiff’s purpose to cross the track without waiting for the car to pass. The principle invoked by the appellant is therefore not appropriate to the present case. The same conclusion was reached upon the facts proven in the street railway cases of Foos v. United Rwys. Co., 136 Md. 540; Cook v. United Ry. Co., 132 Md. 553; Heying v. United Rys. Co., 100 Md. 281; and Balto. Consol. Ry. Co. v. Armstrong, 92 Md. 554.

One of the defendant’s granted prayers stated that it was the duty of the plaintiff, before crossing the railway tracks, to look and listen for approaching cars, and authorized a verdict for the defendant if the jury should find that the plaintiff failed to so look and listen and that the accident was due to such failure. This prayer is criticised because it charged the plaintiff with the duty of listening as well as looking for approaching cars. But if it be conceded that there may be conditions under which the due care required of those about to cross the tracks of a street railway can be fully observed by the use only of the sense of sight, and that it was not necessary for the plaintiff in this ease to prove that he both looked and listened for cars before he reached a position of danger, we, nevertheless, can see no injury to the plaintiff in the granting of the defendant’s prayer in view of the evidence. If the jury believed that he “slowed down” his motorcycle and looked for approaching cars, as he testified, they could have no doubt that he also listened for them at the same time, as there was no suggestion that his sense of hearing was impaired. In no view of the ease would it be reasonable to hold that this instruction involved a reversible error.

The only other question to be considered relates to the form of a granted prayer of the defendant which instructed the jury that the burden of proof was on the plaintiff to establish by a preponderance of evidence “the state of facts alleged in the declaration.” In the case of United Rwys. Co. v. Cloman, 107 Md. 681, a prayer which would have directed a verdict for the defendant if the testimony left the minds of the jury in a state of even balance as to the truth of “the allegations in the declaration” was held to'have been properly rejected, because it would have had a tendency to mislead in view of the fact that the declaration contained a number of allegations as to the plaintiff’s injuries which were not essential to his right of recovery. But in Pillard v. Chesapeake Steamship Co., 124 Md. 468, a granted prayer in that form was approved. In the pending ease the declaration alleged in de^ tail the injuries sustained by the plaintiff, and his proof supporting the allegation on that subject was without contradiction. The sole contested issues in the case were those of primary and contributory negligence, and, as they were fairly submitted to the jury, we see no reason to reverse the judgment and remand the case for a new trial because of the suggested error in the instruction just mentioned, which was plainly unprejudicial.

Judgment affirmed, with costs.  