Armiger v. Baltimore Transit Co.

• Decision Date: 13 January 1938
• Docket Number: 79.
• Citation: 196 A. 111,173 Md. 416
• Parties: ARMIGER v. BALTIMORE TRANSIT CO. et al. [*]
• Court: Maryland Court of Appeals

196 A. 111

173 Md. 416

ARMIGER v. BALTIMORE TRANSIT CO. et al. ^[*]

No. 79.

Court of Appeals of Maryland

January 13, 1938

Appeal from Circuit Court, Baltimore County; William H. Lawrence Judge.

Suit by Harriett N. Armiger, an infant, by Daniel N. Armiger, her father and next friend, against the Baltimore Transit Company and another for injuries sustained in an automobile collision. From an adverse judgment, the plaintiff appeals.

Reversed and remanded.

Edward H. Burke and Willis R. Jones, both of Baltimore, for appellant.

James J. Lindsay, of Baltimore (Philip S. Ball, of Baltimore, on the brief), for Baltimore Transit Co.

J Fletcher Gorsuch, Jr., of Towson (Edwin W. Wells, of Baltimore, on the brief), for J. Carroll Monmonier.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE SLOAN, MITCHELL, and JOHNSON, JJ.

MITCHELL Judge.

The suit in this case was instituted by Harriett N. Armiger, an infant, through Daniel N. Armiger, her father and next friend, for injuries received by her while returning from a visit to Martinsburg, W. Va., on December 29, 1935, as a guest in an automobile operated by C. Albert Hodges, Jr., which collided with an automobile owned and operated by Dr. J. Carroll Monmonier. Miss Armiger, at the time of the collision, was 18 years of age, and Mr. Hodges 17. The scene of the impact was on the Frederick road, in or near Catonsville, Md., at a point about 75 feet east of the intersection of Frederick road and Beechwood avenue. The general course of Frederick road is east and west; and, at the time of the accident, the automobile in which the plaintiff was traveling was being driven in an easterly direction, and the course of the Monmonier car was directed westerly. Frederick road, at the point of the collision, is a macadam highway with concrete shoulders; the width of the road, including the shoulders, being at least 22 feet. Located north of the highway and parallel therewith, are double streetcar tracks of the Baltimore Transit Company, a body corporate; and the southern rail of these tracks is approximately 5 feet distant from the edge of the north shoulder of Frederick road.

Mr. Hodges testified that, accompanied by Miss Armiger, he left Martinsburg at not later than 12:30 p. m., and had traveled a distance of approximately 92 miles towards Baltimore at the time of the accident, which occurred at about 3:30 p. m.; that, at the outset of their journey, it began to snow and continued to do so; that snow was falling fast at the time of the collision; that the driver's side of the windshield was equipped with a wiper and defroster which enabled him to see ahead; that, when aproximately 300 feet in its rear, he noticed a trolley car sweeper proceeding in the same direction in which he was traveling, and, when 150 feet to the rear of the sweeper, he could see that it was throwing a snow spray entirely across Frederick road; he was then proceeding at the rate of 25 miles an hour; that, at the scene of the accident, snowplows had cleared the highway, leaving a clear width of about 17 feet for vehicular travel; and that he was driving on his extreme right of the cleared space. The witness further testified that he could not see through the line of spray ahead of him; that, immediately prior to entering it, he took his foot off of the accelerator and proceeded to pass through it, and that 'at that moment there was a crash.' At the time he entered the curtain of spray it was higher than the top of his car and 'it was so thick that when I found myself within the spray it was as if a complete blanket surrounded me.' He did not see the Monmonier car at any time before the crash, and after it his own car came to a stop approximately in the center of the highway.

Miss Armiger testified that it was snowing and that there was no windshield wiper or defroster on her side of the car. For this reason she could not see through the windshield or in front; but she could see out of the side window to her right, and that the car was being driven to the driver's extreme right, because it was close to the banked snow on her right, as cleared by the snowplows. She did not see the streetcar sweeper or observe the curtain of snow, nor did she see the automobile of Dr. Monmonier at any time. 'Q. You have heard Albert Hodges' testimony. Did you know you were running into a spray of snow from this sweeper? A. No, I did not see it. My side of the windshield was closed in with snow. I could not see ahead through the snow on the windshield.' Finally, when asked to tell what she knew about the accident, Miss Armiger stated that they were driving on Frederick road when all of a sudden there was a stop and she was thrown against the windshield and was rendered unconscious.

Dr. Monmonier and the Baltimore Transit Company are the joint defendants in the case; and, testifying in his own behalf, the doctor stated that he saw the sweeper approaching him at least two squares distant; that the spray represented a curtain of snow extending completely across Frederick road and was high enough to obliterate all view of any traffic coming towards him. This condition continued down to the instant of the collision. He had intended to make a right-hand turn into Beechwood avenue, which would have caused him to cross the streetcar tracks, but, because of the density of the spray, he decided not to reach the intersection and cross ahead of the sweeper; to the contrary, he slowed down to a practical standstill as the best method of receiving the spray as the sweeper passed him. At that time he was on his extreme right of the highway and only 3 or 4 feet from the southern streetcar rail. He did not see the Hodges car at the time of impact, but his automobile, after it was struck head-on, was 'shunted' around and in front of the snow sweeper, and also struck by the sweeper. His car came to a stop on the westbound streetcar track and was then facing east.

David Lee Ford, an employee of the corporate defendant, was called by the plaintiff and testified that at the time of the accident he was a member of the crew of the snow sweeper, acting in the capacity of 'plowman'; that the plow is a blade about 65 inches long which scrapes along the track but does not throw snow; that it is operated by a separate control from that which operates the brooms; the latter are run by a motor operated by a 'shopman' stationed inside of the sweeper, and the speed of the sweeper does not control that of the brooms; the brooms are circular in form, and are located, respectively, under the front and rear of the sweeper; they are set at an angle; the front broom transfers the snow towards the outside rail, and the rear brush throws it from the tracks. Aprons are provided for each broom, to keep the snow from being thrown out too far. The witness further stated that the method of operating was to cut down the speed of the broom when within about 10 feet of an approaching automobile, so as to decrease the spray emerging from the sweeper. He further explained that the motorman or plowman usually signaled the operator of the brooms when to cut down the speed of the latter because of the approach of other vehicles, and that at times the operator of the brooms could not determine the sweep of the snow and its effect upon vehicles in the highway, by reason of snow on the front windows of the sweeper. With the brooms revolving at half speed, the maximum distance to which the spray would be thrown would be 5 or 6 feet.

At the conclusion of the plaintiff's case the corporate defendant offered three prayers. Two of these, one a demurrer to the evidence, and another based upon the theory of contributory negligence on the part of the plaintiff, were not acted upon by the trial court. The third prayer, which sought an instruction that there was no legally sufficient evidence to show that any negligence on the part of the Baltimore Transit Company was the proximate cause of the accident, was granted; as was also the first and only prayer of the defendant Monmonier, which instructed the jury that there was no evidence legally sufficient to entitle the plaintiff to recover against the latter defendant.

Three exceptions are found in the record, two of which relate to rulings on evidence, and the third to the court's ruling on the prayers.

The two exceptions as to rulings on evidence will be considered together, as they both relate to the propriety of cross-examining the same witness upon practically the same subject, in the following respect: (a) The witness Ford, in his examination in chief, was permitted to describe in detail the mechanical features of the snow sweeper, and to state that his instructions were to cut down the speed of the broom, so as to reduce the spray emerging from the sweeper, upon approaching an automobile within approximately 10 feet. He also added that the motorman generally gave the shopman a signal and the latter cut the motor out on the brooms. On cross-examination he was asked if immediately before the accident in controversy he did cut the brooms down, and his reply was that 'we did.' (b) The witness then testified on cross-examination, without objection, that, while operating the plow on the occasion of the accident, he observed the automobile of Dr. Monmonier approaching the sweeper. He was then asked: 'Now, on this Sunday afternoon, did you comply with all those instructions'; and, over objection, permitted to answer, 'we did.' It is contended by the appellant, the plaintiff below, that the trial court erred in permitting the witness to testify, on cross-examination, as to whether his instructions were followed at the time of the accident, the witness not having been asked on direct examination to give any testimony concerning the...