Bauer v. Calic

• Decision Date: 04 April 1934
• Docket Number: 124.
• Citation: 171 A. 713,166 Md. 387
• Parties: BAUER ET AL. v. CALIC.
• Court: Maryland Court of Appeals

171 A. 713

166 Md. 387

BAUER ET AL. v. CALIC.

No. 124.

Court of Appeals of Maryland

April 4, 1934

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

Action by George Calic, individually, and to the use of the Travelers' Insurance Company, against Charles Bauer and Frank Bauer, trading as Bauer Brothers, and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

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

Edward L. Ward and Joseph T. Parr, both of Baltimore (Rome & Rome of Baltimore, on the brief), for appellants.

L Wethered Barroll and H. Arlington Blood, both of Baltimore (Fendall Marbury, of Baltimore, on the brief), for appellee.

PATTISON Judge.

This is an appeal from a judgment recovered by George Calic individually, and to the use of Travelers' Insurance Company, against Charles Bauer and Frank Bauer, trading as Bauer Bros., and H. C. Sutter, for injuries sustained by George Calic, in falling or being thrown from an automobile truck, caused, as alleged, by the negligence of the appellants, in the management and operation, by their servant, of the truck.

This appeal presents the following questions: First, whether there was legally sufficient evidence of primary negligence on the part of the driver of the truck, imputable to the appellants. Second, whether the appellee was guilty of contributory negligence, as a matter of law. Third, whether the driver of the truck was the servant of the appellants, or either of them, at the time of the accident. Fourth, whether the trial court committed prejudicial error with respect to the rulings on certain evidence.

It is disclosed by the record that the James McGraw Company of Philadelphia was employed by the Pennsylvania Railroad Company to prepare, in part at least, its road between Philadelphia and Baltimore for electrification. To do this work, McGraw Company hired trucks, with a driver for each, from H. C. Sutter, one of the appellants, at and for the sum of $1.60 per hour, or $16 a day, working ten hours. Sutter had no trucks and was obliged to hire them from others; some of these he hired from Bauer Bros., of Philadelphia, the other appellant. He was to pay for the truck and driver the sum of $1.25 per hour. The men employed by the McGraw Company lived in camps, along the road, which were moved from time to time as the work progressed. The camps, at times, were several miles from where the work was being done, and by the agreement of the men with the McGraw Company, they were to be furnished by it with transportation to and from their work. The trucks hired by the McGraw Company from Sutter were not only to be used for general purposes, but, as many of them as were needed, were also to be used in the transportation of the men; the charge therefor being the same as when used for general purposes.

On the 9th day of November, 1931, the appellee, George Calic, one of the workmen, in returning from his work to the camp or his lodging place at Middle River, upon one of the trucks that Sutter had hired from Bauer Bros., was injured by falling from and being run over by the truck.

After the accident and injury, Calic applied for and obtained an award from the State Industrial Accident Commission of Maryland for the injuries he had received. This award and the expenses incident to the injuries caused by the accident were paid by the Travelers' Insurance Company, the insurer of the employer, the James McGraw Company, and this suit is now brought by George Calic, individually and to the use of Travelers' Insurance Company, to recover damages against Bauer Bros. and Sutter for the injuries he received.

There is contained in the record the following evidence, reflecting upon the two first questions here involved: (1) Whether there was legally sufficient evidence of primary negligence on the part of the driver of the truck; and (2) was the appellee guilty of contributory negligence, as a matter of law.

George Calic, the plaintiff, an employee of the James McGraw Company, testified that on November 9, 1931, he, with other workmen, quit his work at the usual time, 5:30 o'clock in the evening. At the time "it was pretty dark"; that he got on the truck near the railroad track where he had been working to ride to his boarding house at Middle River. He did not know who was driving the truck. "About thirty, thirty-five or maybe forty men got on the truck"; some were in the truck, others on the outside of the truck, on the footboard and fenders. He was standing on the running board on the left side. Two other men were on that side, sitting on "the fender and between the hood," one facing the front and the other the rear of the truck, and the witness with his legs stretched out on the running board. When asked, "Well, how much room did you have?" he answered, "Well, I had about room for one good foothold." He was standing up facing the cab, with his left hand "by the door of the cab (that is, holding on to the door or frame of the door) * * * with the right hand I didn't have any good hold. I just supported my right hand anywhere I could, on the corner of the back of the cab. * * * It was kind of round and you could not get much hold on it, but it was pretty fair as long as the truck was running nice * * * but * * * I had a good hold with my left hand." When asked, "Was that the place you got on the truck when it started * * * ?" he said: "Yes sir, that was the only place for me to ride." He rode in this position for a distance of about two and a half miles. When about to get on the truck, the driver said: "Come on boys, come on, I ain't going to sit here and wait for you fellows all night here. * * * I had never ridden on the running board before and I never heard the chauffeur say anything about riding on the running board." When they got near Eastern avenue, "we stayed there and waited for this other truck that was coming from the other direction--from Chase." When it came he thought, if there was room, he would get in it; but there were other men there, and as "soon as the other truck come they loaded" on it. "It was just as many men as the truck I was on." There were men on the running board of that truck. Had there been none on its running board, he said: "I would change my place * * * and be alone on the running board of that truck. * * * Other than riding in this truck (the one he was in) or the one that met it at Eastern Avenue, there was no other truck that I know of to bring the men back to their homes." The two trucks then, he stated, started down towards Middle River. When they reached the place where the truck driver always stopped and "where I was to get off * * * he didn't stop. He went on over this spot and I hollered at him twice to stop and at the same time I changed my position, my foothold, getting ready to get off and he swung to the right, swerved to the right, made a kind of jerk, I couldn't tell you what, because I am not a driver. I couldn't drive a truck. * * * This was right after I called the second time to stop that he made that swerve to the right," and "I lost the grip after he made that jerk. When he swerved the truck and gave the jerk I slipped off that quick and find myself under the wheel, the back wheel on the left side." He could only see the driver when getting on the truck. He could not see him after that time. "I just had enough space on that running board to squeeze both of my feet on the back hand (end) of the running board."

"Q. You changed your foothold? A. Yes sir.

Q. What do you mean by that? A. Well, now I am standing here (indicating) standing up facing the cab and as I said, I just had enough room for both feet and after I hollered at him twice to stop I tried to turn myself kind of to the left to face forward."

He was asked on cross-examination: "Didn't you then jump? A. No, I didn't." The effect of the jerk, as he stated, was to break the grip of his left hand upon the car, and it was then that he fell off and the wheels went over his leg.

Other witnesses testified, corroborating the evidence of the plaintiff as to his position on the running board and also as to the swerving or jerking of the car; one or more of them testified that they had difficulty, because of the jerking or swerving of the truck, in maintaining their positions or remaining on the truck.

Stephen Klasanovich, in describing the movement of the truck, said: "He (speaking of the driver) give such a jerk * * * so pretty near I fall myself but I was on the right side running board, * * * but the turn was so quick on the right side with a big jerk." Unlike the plaintiff, who was on the left side of the truck, the sudden turn to the right would have had the effect of throwing him (the witness) against, and not away from, the truck. Witness further testified that there was no room for any one to get on the second truck, which they met at Eastern avenue, and these were the only two trucks furnished, on that occasion at least, for the transportation of the men.

Louis Kardnovich testified that "the truck was slowing a little bit, and he go ahead quick and after that I heard somebody cry out loud."

Burkins the driver of the truck, testified that he did not know Calic, the plaintiff, and could not say whether he rode in his truck before that night or not. When he got on the truck on the night of the accident, he asked to be let off at Middle River. He heard "somebody holler there was a man fell off," and he went back and found that he had run over the plaintiff. At the time he was slowing down to let him off. "I beared off to the right, I didn't cut short or nothing like that--beared off like I was going to stop, when someone hollered 'stop' or somebody fell off. * * * There were...