E.H. Koester Bakery Co. v. Poller

• Decision Date: 12 December 1946
• Docket Number: 26.
• Citation: 50 A.2d 234,187 Md. 324
• Parties: E. H. KOESTER BAKERY CO. v. POLLER et al.
• Court: Maryland Court of Appeals

50 A.2d 234

187 Md. 324

E. H. KOESTER BAKERY CO. v. POLLER et al.

No. 26.

Court of Appeals of Maryland

December 12, 1946

Appeal from Baltimore City Court; Herman M. Moser, Judge.

Action by George Poller against the Baltimore Transit Company and E H. Koester Bakery Company for personal injuries sustained while plaintiff was a passenger on a street car which collided with a bakery truck owned by the bakery company. From a judgment granting the transit company's motion for a judgment notwithstanding the verdict in favor of plaintiff against one defendant and denying the bakery company's similar motion, the bakery company appeals.

Judgment affirmed.

Rignal W. Baldwin, of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellant.

Philip S. Ball and John M. Butler, both of Baltimore, for Baltimore Transit Co.

Pierson & Pierson, Albert E. Weir and Leon H. A. Pierson, all Baltimore, for George Poller.

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

HENDERSON Judge.

George Poller sued the Baltimore Transit Company and E. H. Koester Baking Co. for personal injuries sustained while he was a passenger on a street car which collided with a Bakery truck on Hanover Street in Baltimore City. At the conclusion of the testimony the trial court reserved rulings on motions for directed verdicts by both defendants, and the jury brought in a verdict of $500 against both defendants. The court subsequently granted a motion for judgment N.O.V. in favor of the Transit Company and overruled a similar motion filed on behalf of the Baking Company. The co-defendant, E. H. Koester Baking Company has appealed from these rulings.

At the argument of the case in this court the appellant formally abandoned its claim that there was no evidence legally sufficient to establish liability on the part of the Baking Company. The point pressed, and the sole issue in the case is whether there was evidence legally sufficient to establish liability on the part of the Transit Company. We entertain no doubt as to the right of the appellant to appeal from the judgment in favor of the co-defendant, which affected its statutory right of contribution. Code, Art. 50 sec. 22. Compare Brotman v. McNamara, 181 Md. 224, 29 A.2d 264.

The plaintiff was employed at the Bethlehem-Fairfield Shipyard. On April 16, 1945, he boarded a No. 6 car at Light Street, at about a quarter past five in the morning. It was dark, the streets were wet and there was a slight drizzle of rain. The car had a standing load of over 80 passengers, and weighed approximately 25 tons. The plaintiff obtained a seat next to a window on the right side behind the center door, and dozed off. He was aroused by a heavy impact which threw him against the seat in front, cutting his head and chipping a piece off a front tooth.

The collision occurred about 5:20 A.M. on Hanover Street viaduct, a short distance south of Reedbird Avenue, a street giving access to the City Incinerator on the west. Hanover Street runs north and south and is a through or boulevard highway, leading to the dual highway to Annapolis and points south. It is also the principal highway serving the whole industrial area south of the Patapsco River, and traffic thereon was notoriously heavy during the war period, particularly at the time of changes of shift at the war plants. Double tracks of the Transit Company occupy the center of the street, which is about 50 feet wide, and there is room for two lines of traffic on each side of the tracks. The locality is not thickly built up, for the viaduct borders on Broening Park and the river on one side and traverses a marshy estuary from the point of collision to Brooklyn. North of the point of collision there are only a few filling stations and roadside stands on the west and only one main road leading directly from Hanover Street to the west, known as Cherry Hill Road, which is 1300 feet north of Reedbird Avenue. At the point of collision, Hanover Street is level, but there is a slight down grade from Cherry Hill Road to Reedbird Avenue. Hanover Street is quite straight from a point north of Cherry Hill Road to Brooklyn.

The motorman testified that he was proceeding at a normal speed of 25 miles per hour. This estimate was corroborated by a number of witnesses. He had no occasion to stop at Cherry Hill Road or Reedbird Ave. The traffic in both directions was heavy, but the track ahead was clear for a distance of several blocks, the usual interval between street cars. He observed a double line of traffic on his left, and particularly noticed a large white truck in the line nearest to the tracks. When this truck was about 25 feet away, it suddenly cut to its left and came diagonally across in front of the car. He applied his air-brake and sand, but the impact was so instantaneous that he could not apply the brake fully before the crash. He was knocked away from the controls and rendered unconscious. The automatic emergency brakes (known as the 'dead man') took charge and brought the car to an abrupt stop. He testified that he could not have stopped in less than 150 feet under the conditions existing. This statement was corroborated by the Transit Company's expert, assuming a speed of 25 miles per hour. This witness also testified that the maximum speed of which the street car was capable, under full power, on a level track after a run of 1200 feet, was 37 miles per hour.

A crash squad officer testified that when he arrived at the scene a few minutes after the crash, the street car was standing about 80 feet south of Reedbird Avenue. The front of the car was about 20 feet past the body and contents of the truck, which was a light half ton truck loaded with bakery products. He stated that he could not tell how far the truck had been pushed before it came to rest at the place he saw it.

The truck driver testified that just before the collision he was proceeding north straddling the east rail of the north-bound car tracks. He saw a street car two or three blocks away. To avoid a rough stretch in the paving, he attempted to pull to his left and straddle the west rail of the north-bound car tracks. However, the front wheels skidded on the wet rails, the rear end of the truck swung to the right, and the truck went into the southbound tracks. The last thing he remembered was the skidding; the impact occurred while he was still trying to get his truck under control. He was unable to state how far the street car was away when he started to skid. He testified that, based on his own prior experience as a motorman, the street car could have been stopped in a distance of 75 feet.

The testimony upon which the appellant relies to establish negligence is principally that of Lloyd Johnson. This witness, a passenger on the street-car, estimated its speed at from 35 to 40 miles per hour. He first noticed the truck when it was about 100 to 125 feet ahead of the street car, over between the two tracks, but not on the south-bound tracks. When the truck was 30 to 40 feet from the street car, it went on an angle and came into the southbound tracks. Some of the passengers jumped up and started to scream. He did not feel the brakes being applied before the impact. Herbert T. Hughes estimated the speed of the trolley at 30 to 40 miles per hour, 'just judging it'. He felt no brakes before the impact, and heard no air. Robert Weaver estimated the speed at 35 to 40 miles per hour, although he was not looking out; 'all I felt was one impact'. Matthew Higgins said the street car was going 'fast'. In cross-examination he stated that he thought 25 miles per hour was 'fast' for a street car.

The appellant specifies a number of items that he contends constitutes negligence on the part of the Transit Company. He states that the street car was an old model (it was a Brill 1930) having no separate emergency brake, and no automatic windshield wiper. He contends that the motorman failed to maintain an adequate lookout. We find no merit in these contentions. We cannot predicate negligence upon the mere failure to previde the most modern equipment, in the absence of any evidence that the equipment was defective or...