Baltimore Transit Co. v. State, to Use of Schriefer

• Decision Date: 10 January 1945
• Docket Number: 74,75.
• Parties: BALTIMORE TRANSIT CO. v. STATE, to Use of SCHRIEFER, et al. BAUERNFEIND v. SAME.
• Court: Maryland Court of Appeals

40 A.2d 678

184 Md. 250

BALTIMORE TRANSIT CO. v. STATE, to Use of SCHRIEFER, et al.

BAUERNFEIND v. SAME.

Nos. 74, 75.

Court of Appeals of Maryland

January 10, 1945

Appeals from Baltimore City Court; Joseph Sherbow, Judge.

Suit by the State, to the Use of Carrie Schriefer and others, against the Baltimore Transit Company and Katherine Bauernfeind for the death of Charles Schriefer as the result of a collision between defendant transit company's street car and defendant Bauernfeind's truck. Judgment for plaintiff and defendants appeal separately.

Affirmed.

Philip S. Ball and Eben J. D. Cross, both of Baltimore (Joseph R Hudson, of Baltimore, on the brief), for appellant Baltimore Transit Co.

Paul F Due, of Baltimore (Due, Nickerson & Whiteford, of Baltimore, on the brief), for appellant Bauernfeind.

Michael J. Manley, of Baltimore (Julius A. Victor, Jr., Paul J. Flynn, and Harley, Wheltle & Manley, all of Baltimore, on the brief), for appellees.

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

MELVIN Judge.

This is a suit on behalf of the widow and five infant children of the late Charles Schriefer, of Baltimore City, who was fatally injured in a collision between a street car and a truck on Linden Avenue in said city on February 26, 1942. The claim is for damages resulting to the equitable plaintiffs (the appellees) from the alleged negligence of the motorman of the street car and of the driver of the truck. The case was submitted to a jury on this issue of negligence, as to both operators, and also on the issue of whether the truck driver at the time of the accident was the servant of the defendant, Katherine Bauernfeind, who owned the truck, or of the Mayor and City Council of Baltimore, the hirer of it. The jury returned a verdict for $25,200 against the Baltimore Transit Company and Mrs. Bauernfeind jointly, and from the judgment on this verdict each of said defendants has appealed, the cases being embodied in one record.

The deceased, Charles Schriefer, was an employee of the City of Baltimore and, in due course, claim for compensation was made under the Workmen's Compensation Act. Code 1939, art. 101, § 1 et seq. The State Industrial Accident Commission thereupon, on March 10, 1942, ordered the Mayor and City Council of Baltimore, as employer and self-insurer, to pay Schriefer's widow and children $17.41 weekly for 287 2/7 weeks, not to exceed $5,000, and funeral expenses not to exceed $125. The city not having filed suit within two months after the passage of this order, as it had a right to do under the statute (Sec. 72, Art. 101, Code), to collect the amount of this compensation, the present action was brought by these equitable plaintiffs under authority of this same statute to enforce the alleged liability of the above-named defendants as joint tort-feasors, without joining the city but making reference to the compensation award. During the progress of the proceedings in the trial court the Baltimore Transit Company filed a petition to make the Mayor and City Council of Baltimore a third party defendant on the ground that the truck driver, George H. Bivens, was acting as the agent and servant of the city at the time of the accident. The petition directed the Court's attention to the allegation of the narr: 'that the said George H. Bivens was an agent and servant of the said Katherine Bauernfeind.' The Transit Company then immediately went on to state its own position on this issue by the next paragraph in its petition, as follows:

'(2) Investigation discloses that, while the said George H. Bivens was paid by the said Katherine Bauernfeind, he was at the time of the accident referred to an agent and servant of the Mayor and City Council of Baltimore, having been transferred to its service by mutual arrangement and being, throughout his daily work, subject exclusively to its direction and control. The Mayor and City Council of Baltimore, as principal, is consequently responsible for any negligent act on the part of the said George H. Bivens as its agent and servant which directly contributed to the accident referred to in the said declaration, he having been acting in the course of his employment at the time and place designated.

'(3) That the Mayor and City Council of Baltimore is not mentioned as a party defendant in this cause whereas it may be liable as a joint tort feasor to The Baltimore Transit Company, one of the defendants, or to the equitable plaintiffs, for all or part of the claim against your petitioner as a defendant.'

This petition of the Transit Company was granted but subsequently was rescinded, and on appeal to this court, the rescinding order was affirmed. Baltimore Transit Co. v. State, to Use of Schriefer, etc., Md., 39 A.2d 858. The ground of the decision in that case was that the Mayor and City Council of Baltimore, as an employer complying with the award of the State Industrial Accident Commission, was liable exclusively under the Workmen's Compensation Act, and that the Joint Tort Feasors Act (Art. 50, Secs. 21-30 of the Code 1943 Supp.), which the Transit Company sought to invoke, was not applicable.

The Mayor and City Council of Baltimore having been thus eliminated as a party to the case at bar, and the truck driver, Bivens, who was named as one of the original defendants, not having been summoned, the case proceeded to trial against the two remaining defendants, the appellants here. The verdict of the jury being against them jointly, their separate appeals to this Court are on opposing grounds and furnish the principal controversy here.

The Transit Company bases its appeal (No. 74) on the ground (a) that there was no legally sufficient evidence of primary negligence for submission to the jury as to the motorman of the street car (appellant's A prayer), it being claimed that the truck driver's negligence directly and proximately caused the accident; (b) that from the uncontradicted evidence the deceased was guilty of contributory negligence as a matter of law (appellant's B prayer); and (c) that the question of whether or not the truck driver, Bivens, was the servant of Mrs. Bauernfeind at the time of the accident was a question for the jury and that it was properly submitted.

In her defense to this suit the appellant in No. 75, Mrs. Bauernfeind, takes the position, in effect, that she is completely absolved from any liability because, even though negligence on the part of the truck driver, Bivens, may have caused the accident, he was not her servant or agent at the time. Her whole defense is based on this point and the argument of her counsel was confined to the trial court's rulings concerning it. The assignments of error were the Court's refusal of her demurrer prayers, of her special exception to the court's charge and the refusal of her motion for a judgment n. o. v.

In addition to the exceptions above indicated, as taken by each of the appellants, there were certain exceptions to rulings on the evidence. These latter, however, were not pressed at the argument and may be considered as waived. It is relevant to observe, however, that the Court has considered these rulings and finds no reversible error in any of them.

In passing upon the substantial and controlling questions involved in these appeals, the first are those presented by the demurrer prayers, namely, in No. 74, (a) Should the case have been submitted to the jury as to primary negligence on the part of the motorman of the street car? (b) As to the contributory negligence of the deceased? and, in No. 75, As to whether or not the truck driver, Bivens, was, as a matter of law, the servant of Mrs. Bauernfeind at the time of the accident? These questions call at once for a review of the facts of the case.

As disclosed by the record, these facts plainly show that this was not an unavoidable accident. In broad daylight, about noon, just off a curve and on the slope of a prominent and busy street, the use of which called for the exercise of commensurate care, and when the motorman of a street car and the driver of a truck, approaching from opposite directions, had a clear and unobstructed view of each other for at least 150 feet, they so operated their respective vehicles that they came together in a collision which caused the death of a man who was riding on the running board of the truck.

Going further into the facts, it is shown that this truck happened to be on this particular street (Linden Avenue) at that time as a part of its route for the collecting of ashes for the City of Baltimore. It was bound south from Preston Street in the direction of Biddle Street, and had as its immediate destination or point of call for ash containers a small intersecting street or alley known as Camel Street. This intersection is, according to the plat filed in the case, 180 feet from the corner of Biddle Street. There are two car tracks, northbound and southbound, on this part of Linden Avenue, which is 39 feet from curb to curb, and the truck was slowly operating along the west side of Linden Avenue preparatory to crossing over to the east side and into Camel Street or alley, which is but 11 feet 9 inches in width. This truck was owned by the appellant, Mrs. Bauernfeind, and the driver of it, George H. Bivens, was her employee. However, under an oral agreement with Baltimore City officials, she had hired this truck, together with said driver, to the city for $2 an hour, and at the time in question both the truck and the driver were engaged in the city's business of collecting ashes. On the truck with Bivens were three city employees, all constituting the 'crew' of the truck.

As the vehicle approached Camel Street one of the crew, Edward McCurdy, picked up a small...