Baltimore Transit Co. v. Worth

• Decision Date: 18 March 1947
• Docket Number: 82.
• Parties: BALTIMORE TRANSIT CO. v. WORTH.
• Court: Maryland Court of Appeals

52 A.2d 249

188 Md. 119

BALTIMORE TRANSIT CO. v. WORTH.

No. 82.

Court of Appeals of Maryland

March 18, 1947

Appeal from Superior Court of Baltimore City; Joseph Sherbow, Judge.

Action by James W. Worth to his own use and to the use of Consolidated Gas, Electric Light & Power Company of Baltimore, against Baltimore Transit Company, to recover for personal injuries caused when defendant's streetcar struck a manhole guardrail. Judgment for plaintiff, and defendant appeals.

Affirmed.

Eben J. D. Cross and Philip S. Ball, both of Baltimore, for appellant.

Paul Berman and Sigmund Levin, both of Baltimore (Theodore B Berman, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

COLLINS Judge.

This is an appeal by the Baltimore Transit Company, defendant below appellant here, from a judgment in favor of James W. Worth plaintiff below, appellee here, to his own use and to the use of The Consolidated Gas, Electric Light & Power Company of Baltimore City in the amount of $20,000, entered in the Superior Court of Baltimore City, in a suit for personal injuries.

(1) Appellant contends primarily that there was not legally sufficient evidence of primary negligence on the part of the Baltimore Transit Company or the operator of the streetcar to take the case to the jury and that, therefore, its demurrer prayers and motion for a judgment non obstante veredicto should have been granted. Where demurrer prayers are offered, the Court, in deciding whether they should be granted, resolves all conflicts in the evidence in favor of the plaintiff and the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right to recovery will be assumed. Armiger v. Baltimore Transit Co., 173 Md. 416, 425 and 426, 196 A. 111. We shall therefore review the evidence in the light most favorable to the appellee in considering the demurrer prayers.

The appellee, Worth, six feet tall, on April 1, 1944, was working in a manhole four and one half feet deep, located in the east bound traffic lane of Fayette Street, Baltimore City, between Howard Street and Park Avenue, about eight inches south from the southernmost rail of the east bound streetcar tracks. The location is sixty-five feet west of the intersection of Fayette Street and Park Avenue.

Worth was known as an 'underground helper'. His duty was to go down into the manhole, pull the cables through the conduits, and install them in their proper place against the underground wall. The other members of his immediate crew, all of whom were employees of the Consolidated Gas, Electric Light & Power Company of Baltimore City, were: the foreman, John F. Schmelz, George E. Off, and Joseph Sergi. The duties of Off consisted in handing tools to Worth, the underground helper, and when a streetcar passed at close intervals, as each one passed, he would shout 'hot rail' to Worth as a warning and would press his foot on Worth's back to let him know of the danger above. Joseph Sergi's duty was to take care of the wooden guard rail, painted yellow and black, with a red flag attached, which was placed around the manhole while it was open. When vehicles and streetcars passed by, because the streetcars came so close to the manhole that the guard could not stay in one permanent position, his duty was to move the guard back and forth, if necessary.

While the crew was thus working in this manhole, several east bound cars traveling on the southernmost rails on Fayette Street passed the manhole.

The watchman, Sergi, testified that he was standing inside the wooden guard rail with his face toward the north ready to grab the guard rail if necessary and move it if he thought it was necessary to avoid an accident. One of the men in his crew had put a chalk mark in the street so when the streetcars went by they knew where to place the guard. At the time of the accident the guard was just a trifle south of the chalk mark, enough room for a streetcar to go by. Before the accident he was watching the manhole guard and one of the green streetcars came and stopped right at the center of the manhole. The motorman opened the doors to let the passengers off. Sergi threw his foot across the manhole and 'hollered to the motorman to pull down a bit' so the passengers would not step into the manhole. This was done and then two or three streetcars came down and passed before the one involved in the accident. He saw the east bound streetcar, involved in this accident, as it approached the manhole, and, although he had an unobstructed view of the streetcar, he saw nothing unusual about it and thought it would clear the guard rail. If he had seen a projection he would have moved the guard rail, but he did not see any projection. He said, after the green car went by, 'this streetcar came down and hits the manhole guard of ours.' He further said, when asked the following question by the Court, 'Tell us what you saw. The streetcar was going east, what happened? A. He hit the manhole guard and part of it went into the hole, knocked George Off over, and I ran over and grabbed hold of it and put it around the manhole to be safe, and George said, 'Get Jim out of the hole', and we got Jim out of the hole.' He testified again that part of the manhole guard went in the hole. When asked what part of the streetcar struck the guard, he answered, 'One of the steps in the back of the streetcar,' and he thought that those steps were used in case the rope broke on the trolley. These are small steps and fold against the side of the streetcar and he thought about four of these steps were down as the streetcar passed the guard. He did not see the steps down before the accident occurred. He first noticed the steps were down as the car was going by. The front of the car got by all right. When the car hit the guard it knocked George Off down. He and Off took Worth out of the hole. Worth was unconscious, 'blood coming down,' and Worth was taken to the hospital in an ambulance. On cross-examination Sergi said that he did not notice anything sticking out of the car until after the streetcar had passed and the accident was over.

George E. Off said that he was standing by the manhole ready to hand Mr. Worth a tool. He testified that the guard rail was south of the north rim of the manhole, over part of the manhole at the time of the accident. Three or four streetcars passed and the green car stopped at the hole. The passengers were prevented from getting off there. The streetcar pulled up further and he crouched down to warn Mr. Worth. 'It was more streetcars coming. I told him 'hot rail' and pressed my foot on his back to let him know there was danger up above and the next thing I knew I was lying out in Fayette Street.' He said that he thought two or three cars passed while he had his foot on Worth's back. He said he was thrown about fifteen feet. He jumped up and went over to the hole and saw Mr. Worth lying, and crouched over. 'I told Mr. Sergi to get him out of there and see what is wrong and I pulled him out of the hole and found blood all streaming down his face.' He was unconscious. Off testified that Worth was in a crouching position with his head below the surface of the street at the time of the accident. After the accident the guard rail was 'laying flat.'

James F. Smith, the operator of the streetcar involved in the accident, testified that his car was painted yellow. He had had no conductor with him since his car had become 'a one-man operator.' He started his run that morning from Park Terminal and the terminus was Bedford Square. His schedule prescribed forty-seven minutes to cover that route. The accident took place about two o'clock and it was his third or fourth trip from Park Terminal to Bedford Square that day. On account of traffic conditions he stopped before he reached Park Avenue. When he stopped, the manhole in question was about twenty-two feet in front of him and he noticed that there was someone working in the manhole. He pulled down to the manhole slowly. He noticed a man's head projected above the surface of the street facing south. He said there was no guard around the manhole but it was near the manhole. There were other men present beside the one in the manhole. He went slowly by the manhole and one of the men working there waved him across. He was going slowly.

The first that he knew of the accident was when he was almost up to Miller Brothers, between Liberty and Hanover Street. An officer, who was on the car, came up and spoke to him and as a result he stopped the car. When he stopped the streetcar he went back to the accident to get what information he could. Before he went back an officer in uniform was present. Smith then said: 'I looked at the roof steps before I went back. I found some of the steps down but how many I can't recall. I remember some of them being down.' He later admitted that positively the first one from the ground was down. He did not notice any indication that any of the steps that were down had come in contact with anything. He said, before he started from the Park Terminal, he inspected the streetcar to see among other things that the steps were pushed up in proper place and the steps were closed when he left Park Terminal on this particular journey.

The steps are supposed to be folded against the side of the car when it is in motion. These roof steps, according to other testimony, when open extend 3 1/2 inches further outside of the streetcar than when they are closed, and two inches beyond the beading or rain sill, fourteen inches above that step and forty-seven inches above the ground, permanently attached and running along the entire length of the...