Legum v. State, for Use of Moran

• Decision Date: 25 June 1934
• Docket Number: 58.
• Parties: LEGUM ET AL. v. STATE, FOR USE OF MORAN ET AL.
• Court: Maryland Court of Appeals

173 A. 565

167 Md. 339

LEGUM ET AL. v. STATE, FOR USE OF MORAN ET AL.

No. 58.

Court of Appeals of Maryland

June 25, 1934

Appeal from Baltimore Court of Common Pleas; Joseph N. Ulman, Judge.

Suit by the State, for the use of Agnes W. Moran, widow, and others infant children of Sidney G. Moran, Sr., deceased, against Jacob R. Legum and another, individually and as copartners trading as the Park Circle Motor Company, and another. Judgment for plaintiffs, and defendants appeal.

Reversed and new trial awarded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Walter L. Clark and Joseph Sherbow, both of Baltimore (Clater W. Smith and S. Herbert Harris, both of Baltimore, on the brief), for appellants.

Isaac Lobe Straus and Richard H. Stevenson, both of Baltimore, for appellees.

OFFUTT Judge.

North avenue running east and west in Baltimore City is carried over the tracks of the Pennsylvania Railroad by a viaduct known as the North avenue bridge. McMechen street running northeast intersects North avenue at the western end of that bridge, and ends there. The United Railways & Electric Company operates trolley cars over both North avenue and McMechen street, and the tracks on North avenue are connected with those of McMechen street by a set of curves and switches beginning at a point between 30 and 40 feet east of McMechen street and extending southwesterly. At the intersection, North avenue and McMechen street form two sides of a triangular plot of ground, and going west along the North avenue side of that triangle are, in order, a small grass plot, a fire engine house, and the business establishment of Ditch, Bowers & Taylor. The apex of the triangle is about 90 feet from the west end of the bridge, and from the southeast curb of McMechen street to the north curb of North avenue at that point is about 130 feet. Intersecting North avenue opposite the intersection is a narrow street or alley called Lord street, running northwest from North avenue. At that intersection, at the apex of the triangle and at the northeast corner of McMechen street and North avenue, are traffic lights. Those lights are so set that when traffic bound west over North avenue and McMechen street is allowed to proceed traffic bound east over those streets at that point is stopped, and when the east-bound traffic is released the west-bound traffic stops; so that a pedestrian crossing North avenue at that point must first clear the traffic going in one direction, and then the traffic going in the other, since each proceeds alternately across his path.

From the south curb of North avenue to the south rail of the east-bound street car tracks is 18 feet 7 inches, and the dummy space between the west and east-bound tracks is about 6 feet 5 1/2 inches wide, and in that space are the trolley poles. There appears to be at the intersection no physically defined crossing for pedestrians going north or south over North avenue to or from McMechen street. Near the south curb of North avenue, in the sidewalk, slightly east of the intersection, there is an electric light pole on which is placed one of the traffic lights. The distances noted are approximate.

Early in the evening of February 7, 1933, William P. Gardiner proceeding east over North avenue, when about half way "across McMechen Street" saw Sidney G. Moran, husband and father, respectively, of the equitable plaintiffs, standing on North avenue between the rails of the east-bound railway tracks, facing north. The automobile in which Gardiner was a passenger was traveling at about 30 miles an hour. Proceeding in the same direction, to the left and slightly ahead of that machine, was one owned by the defendant, the Park Circle Motor Company, and operated by William Becker, its employee, apparently traveling at about the same speed, which was "straddling the south rail of the east bound track." The Becker car proceeded on its course, with no perceptible lessening of its speed, and Moran remained in his position without moving until he was struck by the Becker automobile. As a result of the collision, Moran was so badly injured that he died, and this suit was brought by his widow and children to recover compensation for his death on the theory that the direct and proximate cause thereof was the negligence of Becker in operating his employers' automobile. The defense was contributory negligence, and to that defense the plaintiffs replied that even if there was contributory negligence Becker should have known of Moran's peril in time to have avoided striking him, had he exercised reasonable and ordinary care.

The case was tried in the court of common pleas of Baltimore before the court and a jury, and, from a verdict and judgment for the plaintiffs, this appeal was taken.

In addition to the facts which have been stated, there was adduced at the trial evidence tending to prove these facts, which will be stated in narrative form: At the time of the accident it was dark, but the street lights, which were burning, lighted up the bridge so that it was possible for the witness Gardiner to see clearly a block ahead of him; it had been raining earlier in the day, but at the time of the accident the rain had ceased and the surface of the street, while damp, had begun "to dry out a little"; when the accident occurred the traffic lights were set against west-bound traffic, and one or two street cars had stopped at the switch where regularly they took on and discharged passengers; when he was struck, Moran was about 33 yards east of the light pole at the corner of McMechen street and North avenue; broken glass was found between the rails of the east-bound car tracks about 75 feet east from McMechen street, or possibly as much as 100 feet from that point; when he was struck Moran was standing about "two thirds of the way back" or near the middle of the standing street car, if there was but one, or, if there were two, of the "easterly one"; the street cars were 44 feet in length; from the time Gardiner first saw Moran, which was when he was about 41 yards from him, Moran neither moved towards the dummy nor turned his head so far as Gardiner could see, and was not looking in the direction from which traffic was coming; James A. Byrd, who was driving the automobile in which Gardiner was a passenger, saw Moran when he, Byrd, was about 95 yards away, and he was then standing in the east-bound car tracks about 18 yards east of McMechen street; at that time Becker was driving in the east-bound tracks to the left of the witness "kind of abreast" but "a little ahead of him," at about 30 miles an hour, and continued that rate of speed until he struck Moran, who at the time was about middle way of a standing trolley car facing it, which was in front of and north of him, and he, Byrd, heard no horn or other warning from Becker's car; when Byrd, proceeding east on North avenue, passed Ditch, Bowers & Taylor's place, he saw the McMechen street traffic light change from red to green, which permitted east-bound traffic to proceed, and after Becker's car struck Moran Becker drove it to the curb probably 50 or 60 feet east of the point of collision; its right front fender was dented and the glass of the right headlight broken.

Contra, there was evidence tending to prove that the night was foggy, that a drizzling rain was falling, that the visibility was farther lowered by vapor and smoke rising from the railway tracks which ran under the viaduct, that the headlights of approaching automobiles were very glaring, that numerous cars were approaching from the west and several ahead of him and others back of him, that Becker "travelled well up on towards the top of the crown of the bridge and all of a sudden a completely black object loomed up directly off his right hand fender, and the next instant he sort of brushed the gentleman right over the top of the fender itself"; that when Becker first saw him, Moran was about one or two feet away, that the street was wet and slippery, that his fender was not dented, but that his right headlight lens was broken and the headlight itself turned around, and that at the time of the accident he was driving at from 18 to 22 miles an hour.

In connection with the examination of Byrd who had known the location some twelve or fourteen years, he was asked if at the time of the accident Moran was standing "in the regular place that pedestrians use to cross the street." An objection to that question was sustained, and the plaintiffs then offered to prove "that the place at which Mr. Moran was standing at the time he was struck on the evening of the 17th of February 1933, was at the place or in the position where people were and have been for many years accustomed to cross North Avenue at its intersection by McMechen Street, either to take a car westbound standing at that point or to go to the north side of North Avenue," and "that the place where for some fourteen years he had observed people were in the habit of crossing North Avenue at the point in question, was the point or place or approximately the point or place in the line of which Mr. Moran was standing, facing the stationary trolley car, at the time he was struck by the car driven by Mr. Becker." Those offers were also overruled, and those rulings, while not directly involved in this appeal, must be considered in connection with the questions submitted by the prayers.

At the close of the case the plaintiffs offered four prayers and the defendants eleven. The plaintiffs' four prayers were granted, and special exceptions to the third prayer overruled; the defendants' first and fifth prayers were granted as offered, their remaining prayers were refused as offered, but their third and fourth prayers were...