Appeal
from Superior Court of Baltimore City; Carroll T. Bond
Judge.
"To
be officially reported."
Action
by Howard P. Terry against the American Express Company, a
corporation. From judgment for plaintiff, defendant appeals.
Affirmed.
BURKE
J.
This is
the defendant's appeal from judgment for $500 recovered
against it in the superior court of Baltimore city in an
action for personal injuries alleged to have been sustained
by the plaintiff, Howard P. Terry, through the negligence of
the defendant. The facts are unusual, but the legal
principles which should control the case are well settled
the plaintiff offered evidence tending to prove the following
facts: That on the 13th day of March, 1914, whilst he was
crossing the intersection of Franklin street and Park avenue
in Baltimore city, he noticed an electric truck running west
on the north side of Franklin street with no one in control.
This truck was owned by the defendant, and was used by it in
its business of transporting and delivering articles in the
city. At the time his attention was attracted to the truck it
was running at the rate of three or four miles an hour, and
it increased its speed until the time of the happening of the
injuries complained of. He ran to the truck, got hold of the
steering wheel, and attempted to stop the machine, and was
injured. The circumstances under which he was injured and the
reasons which induced him to intervene to stop the truck are
fully stated in his testimony from which we insert the
following quotation:
"I had started across the intersection of Park avenue
and Franklin street, and had gotten about half way across
Franklin street and got on Franklin street. I was not
noticing anything in particular, but I did glance up and saw
an automobile coming down the street, an automobile truck. I
looked more closely, and I saw the truck did not have any
driver. I had noticed before going into breakfast that
morning, also when I came out, there were wagons on the north
side of Franklin street, and men just behind them. I
instantly thought if that car went the way it was going it
certainly was going right into these wagons and would hit the
wagons and injure the men and horses and smash up the wagons.
My idea at once was to divert the car so as to prevent that.
I ran for the car and reached up for the steering wheel with
my right hand and got it, and tried to get hold with my left
hand, but could not. I thought I could steer the car north up
Park avenue, but I found it was going a little too fast, and
by the time I had got half way over Park avenue I found I
could not do that. I then endeavored to run into the brick
wall at the northwest corner, realizing at the time this
would not injure any one, and I had no idea certainly I would
have injured myself, I could not see how I could. It happened
that the front left wheel of the truck struck that rounded
curve throwing my plans all out. I turned the car so the back
wheel came around this way and threw me and the car over
against the pole, and the post caught me right here
[indicating]
and the car caught me right here [indicating], and the
distance between the post and the car was lessening all the
while, as it came closer, it brought me around this way
[indicating], and I was jammed in about as small a place as
anybody could be. As far as I know I retained hold of the
steering wheel. That's about all I remember until being
carried up the steps of the doctor's house, and I came
to and then went to the Y. M. C. A. and was attended there
by Dr. Abercrombie."
That
his primary purpose, as he testified, in attempting to stop
the truck, was to save the lives of the men working on the
street, and if the truck had not been diverted it would
probably have crashed into the wagons. He further testified:
That at the time he intervened, the motor power of the truck
was turned on. That he could not say whether he turned the
current on in attempting to stop the truck, but if he did it
was unintentionally done. That he did nothing to accelerate
the motion of the truck. The plaintiff was severely and
painfully, but not permanently, injured. He testified: That
he had operated a gas truck. That he never ran an electric
one, but in steering there is no difference in a gas and an
electric truck. That he was unable to get in the truck,
because of certain obstructions, and was unable to turn the
truck to the south side of Franklin street or up Park avenue
for reasons which he gave to the jury. And that he interfered
"to save life and property."
Charles
V. Milholland, an experienced automobile demonstrator, who
was familiar with electric trucks and had operated them,
testified:
That in order to stop an electric truck and insure its
remaining stationary, the driver "should close his lever
and put on his foot brake. Q. Does that stop the motor and
the electric current? A. Yes; absolutely, if he takes it off
all points. Q. I understand that in a gasoline truck you can
leave the motor go and in an electric truck you have to stop
the motor; that is my understanding of the difference between
the two kinds of trucks. A. In the electric truck, if the
switch is on and the brake is on, if the brake is sufficient
to hold the point at which that lever is set the car will not
move, but it will burn out the points. If you have enough
power to overcome your brakes the car will move, otherwise
the points will burn."
Julius
J. Small, the driver of the defendant's truck, testified:
That the truck was in good condition, and that he had
examined it that morning before taking it out of the garage.
That the second stop he made was to deliver a package at 114
West Franklin street. That he threw off the power and closed
down the switch. He said:
"I was in the gutter. I had the car in the gutter. That
the front wheels were in the gutter. The back part was out of
the gutter. Now the gutter at that point is curbed. It was
about that high at the time [indicating], and I had my wheels
turned in part of the way first, as the law requires when you
stop on a hill. Just about then, as I stated before, the car
started off, and, as the lady told me, I dropped everything
and run. It was moving very slowly, and I happened to look at
the car, and at the same time I seen the gentleman run across
the street, who I afterwards learned was Mr. Terry. He looked
to me as though he come from the southwest corner of Franklin
street across, and as I jumped on the car Mr. Terry had hold
of the car at the same time, he had one hand up on the wheel
and one foot on the hub reaching for the dashboard. He was
slipping off the wheel, because he could not ride the wheel.
The wheel had the speedometer on, which registers the
mileage, and he was trying for that, which he could not
reach. Just as the car hit the post, that is the trolley
pole, I was on the seat, and backed away that quick, and
naturally Mr. Terry was in between the post and the
car."
That
there was a "very slight grade" from 114 West
Franklin street to the place where the plaintiff was injured.
On
cross-examination, he testified as follows:
"Q. Won't you explain to the jury why, if the wheel
was turned in at that angle with no current on the car
running it, that car would continue that distance at that
rate of speed and you running hastily after it, was it
possible for that car to run in that way, simply from its own
momentum? A. It was, yes; except from power. Q. Without
power? A. Without power. Q. With the brakes on? A. I adjusted
the brakes when I got off the car. Q. Would it have gone that
way with the brakes on without power? A. No, it would not. Q.
Then the brakes could not have been on? A. The brakes were on
when I left the car. Q. When the car was running that way
there could not have been any brakes on? A. After I got on
the car, at 128, I found the brake was off. Q. Then you had
not put it on? A. I had put it on. Q. You hadn't properly
put it on. A. I had properly put it on."
The
facts stated are sufficient to dispose of the main legal
questions presented by the record.
At the
conclusion of the whole case the court granted the
plaintiff's third and fourth prayers. The fourth prayer
was the usual damage prayer, and the third prayer is here
transcribed:
"If the jury find from the evidence that the defendant
corporation negligently permitted its motor delivery truck to
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