Brooks v. Sun Cab Co.

• Decision Date: 08 November 1955
• Docket Number: No. 19,19
• Parties: Marion Major BROOKS v. SUN CAB COMPANY, Inc., a body corporate.
• Court: Maryland Court of Appeals

Page 236

208 Md. 236

117 A.2d 554

Marion Major BROOKS v. SUN CAB COMPANY, Inc., a body corporate.

No. 19.

Court of Appeals of Maryland.

Nov. 8, 1955.

Rehearing Denied Jan. 3, 1956.

Bernard W. Rubenstein, Baltimore (Irvin A. Adler, Baltimore, on the brief), for appellant.

Frederick J. Green, Jr., Baltimore (James J. Lindsay, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

Mrs. Marion Major Brooks, age 33, a resident of Baltimore, brought this suit for damages in the Baltimore City Court against Sun Cab Company, Inc., to recover for personal injuries which she sustained in a taxicab owned by defendant and operated by William Dietz, defendant's employee, when the taxicab hit a dip in the street at the intersection of Lafayette Avenue and Poplar Grove Street.

The accident occurred on July 25, 1953, at about 3:30 a. m. Plaintiff testified that she got into the rear seat of the taxicab at the corner of Linden Avenue and McMechen Street, and asked the driver to take her to her home on North Carey Street. She said that the driver traveled west on Lafayette Avenue at a normal rate of speed until he approached the intersection of Poplar Grove Street, when he suddenly increased his speed, evidently to make the green light; and when he hit the dip in the street at that intersection she was bounced up from the seat, and her head struck the ceiling of the cab, and her back was strained. She declared that she grabbed her head and screamed, and shouted that her head was hurt. She further swore that the driver was operating the car at such a great rate of speed that he almost lost control of the car, but when he regained control he brought it to a stop, and she told him that she wanted to go to a hospital, as she was pregnant. The driver thereupon drove her to the University Hospital. There she had an examination, but returned to her home soon afterwards.

Plaintiff further testified that from the time of the accident on July 25 until the time of the birth of her baby on October 14, she had to spend most of the time in bed suffering with pains in her back and with headaches. She stated that, while her baby was born a normal child, she had continued to suffer pains in the lower part of her back. She further testified: 'If I work I suffer these severe pains and if I get a little too tired, and also these headaches. * * * If they were due to the pregnancy, they probably would have been gone after delivery; but I still have them.'

The driver testified that he was driving at a speed of 25 miles per hour, and when he reached Poplar Grove Street the traffic light was green and nothing unusual happened. He stated that his headlights were on, but he did not see the dip. He explained that, while Poplar Grove Street is about on the same level with Lafayette Avenue, its curb is deeper than that of Lafayette Avenue, and the dip takes care of the difference in depth. When asked how deep the dip was, he said: 'No more than 4 to 6 inches deep, if it is that much; say about 2 to 4 inches.' He admitted that he may have driven over this dip 'hundreds of times,' but he did not recall being 'too familiar with it,' as he had never had any complaint about the way he drove over it. He added that there are many other dips like it in Baltimore, and he did not think a driver can see them. He claimed that he went about a half block beyond the intersection before his passenger complained of being hurt, and he then stopped the car and asked her what the trouble was, and she said that she had bumped her head.

Defendant requested a directed verdict on the ground that there was no evidence legally sufficient to entitle plaintiff to recover. But the trial judge instructed the jury on both primary negligence and contributory negligence. On the subject of primary negligence, he instructed the jury that a taxicab company must exercise the highest degree of care consistent with its undertaking as a carrier. On the subject of contributory negligence his instruction was as follows:

'On the other hand, if you do find that the defendant has violated its obligation, then your verdict will be in favor of the plaintiff, unless you find from the evidence that there was some negligence on the part of the plaintiff which directly contributed to the injuries she sustained, if you find that she sustained injury. When I say negligence on the part of the plaintiff, that means if you find that there was any failure on the part of the plaintiff to use ordinary care, that is to say, such care as an ordinarily prudent person would have used under the same circumstances riding in the cab in the back seat.'

Plaintiff excepted to that instruction. The verdict of the jury was in favor of defendant, and judgment was entered on that verdict. Plaintiff appealed from the judgment.

In Maryland taxicabs used in the public transportation of passengers are classified as common carriers. Code 1951, art. 78, § 20; Goldsworthy v. Public Service Commission, 141 Md. 674, 119 A. 693; Stewart Taxi-Service Co. v. Spencer, 149 Md. 635, 642, 132 A. 153. This rule is in accord with the great weight of authority under the trend of modern decisions. Carlton v. Boudar, 118 Va. 521, 88 S.E. 174, 4 A.L.R. 1480; Anderson v. Yellow Cab Co., 179 Wis. 300, 191 N.W. 748, 31 A.L.R. 1197.

It is an established rule in Maryland, laid down by Judge Alvey in Baltimore & Ohio R. Co. v. State, to Use of Hauer, 60 Md. 449, 462, that while common carriers of passengers are not insurers of absolute safety, yet they are bound to exercise reasonable care according to the nature of their contract; and as their employment involves the safety of the lives and limbs of their passengers, the law requires the highest degree of care which is consistent with the nature of their undertaking

As a common carrier by taxicab has the duty to be watchful and alert at all times, a passenger has the right to assume that the carrier is familiar with the dangers to be apprehended, and will use proper care, skill, and vigilance to avoid them. In O'Connell v. Quaker City Cab Co., 84 Pa.Super. 323, it was held that if the driver of a taxicab sees, or if reasonably alert...