Kaufman, by Deutch v. Baltimore Transit Co., 75

• Decision Date: 07 February 1951
• Docket Number: No. 75,75
• Citation: 78 A.2d 464,197 Md. 141
• Parties: KAUFMAN, by DEUTCH et al. v. BALTIMORE TRANSIT CO.
• Court: Maryland Court of Appeals

Page 141

197 Md. 141

78 A.2d 464

KAUFMAN, by DEUTCH et al. v. BALTIMORE TRANSIT CO.

No. 75.

Court of Appeals of Maryland.

Feb. 7, 1951.

L. Wethered Barroll, Baltimore (Lewin Wethered and H. Harry Rosenberg, Baltimore, on the brief), for appellant.

J. Nicholas Shriver, Jr. and Hamilton O'Dunne, both of Baltimore, for appellee.

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

MARKELL, Judge.

This is an appeal from a judgment on a verdict directed for defendant at the close of plaintiff's evidence in a negligence case. Plaintiff, a passenger on defendant's street car, was injured by the fall of another passenger, a Mrs. Vandeveer, into plaintiff's lap about six o'clock on Saturday afternoon, December 4, 1948. The verdict was directed on the ground that there was no evidence legally sufficient to show that plaintiff's injuries, or the fall of the other passenger, was caused by negligence of defendant.

Plaintiff, then nineteen, lived and still lives with her mother in Baltimore, and was a student at Johns Hopkins University, where she graduated with honors, receiving a B.S. degree, on June 14, 1949. She was married about three weeks after December 4, 1948, as had been planned. Since May, 1949 she has been employed at Edgewood.

Plaintiff was seated, with her mother beside her, on the rear, curved seat of defendant's North Avenue trolley car. The car was crowded, there were people standing. Somewhere between Pulaski Street and the Western Maryland underpass 'all of a sudden the street [car] gave a terrific jolt and Mrs. Vandeveer [fell] on me. I had my arm * * * across my lap, and this lady fell into my lap on my arm, and then, of course, she got up and apologized. I started to cry because I was in pain, and my mother tried to console me, and she went up and spoke to the street car conductor, and I continued on until I got to Alto Road, which is where we always get off, and got off and walked home, which is about a block'. At the time the car gave this jolt, 'it is hard to say what it was doing', (whether it was in motion). 'I don't know because I wasn't paying any attention; all I know it gave this terrific jolt and she was thrown right on to me.' Asked to describe the jolt, she said, 'it gave a very terrible--a very severe jerk or jolt to the street car which was severe enough to throw the woman off her feet.' As a result of this jolt, 'she fell into my lap'. Saturday evening plaintiff telephoned her family physician and Monday evening, December 6th, went to see him. Her 'arm was very sore, and it just felt sort of strained where she had fallen on this part of it; I felt it all the way up, even through the back of my shoulder and the back of my neck'. Her physician continued to treat her for this neck condition, directed her to use heat on it, suggested physiotherapy treatments, which did not seem to help, then X-rays and about the beginning of April sent her to Dr. Weinberg, who testified that he feels the condition of pain in the cervical region of the spine is permanent, and that her symptoms follow or can follow such an injury as she had. She wears a collar prescribed by Dr. Weinberg, but at first wore a higher collar and 'had to wear it more than I do now'.

Plaintiff's mother testified, 'the car gave an unusually hard jerk, and this lady who had been standing by the last side seat, it threw her; she fell several steps towards the back and landed on top of [plaintiff]'. 'I would say it was an unusually hard jerk--enough to throw a woman of Mrs. Vandeveer's size off her feet'.

Mrs. Vandeveer testified that the car was crowded; she was standing about four feet from plaintiff. 'I was standing in the rear of the car holding on to the last seat on the left of the car. Of course, there was a circular seat in the back, * * *. As well as I can remember it started off after it had stopped to let a passenger off, and it gave a jerk and I lost my hold and fell toward the back.' She fell against plaintiff, she could not prevent falling the way she did. '* * * as I have already said, the car started off after it had stopped to let a passenger off, and gave a jolt, and then I fell back towards the lady'. As far as she knows, she is in perfect health; there was nothing the matter with her to cause her to fall. Asked to 'describe a little more in detail what sort of a jolt it was', she said, 'Just like it always does when it starts off'. On cross-examination, when asked whether or not some people got up from the rear seat and she let go of the seat when they got up, before the car started let go of her hold, she said, 'Somebody did pass. I had to let go. I let somebody pass, as well as I remember. Q. You were not holding then when the car started off? A. I don't think I was.'

In passing upon the legal sufficiency of the evidence we must, of course, assume the truth of the evidence, and all permissible inferences, most favorable to plaintiff. If the testimony of one witness at the trial is legally sufficient, it matters not that this testimony may be contradicted by ten witnesses for defendant, or even that it may be in conflict with statements before the trial, or testimony in a previous trial or other legal proceeding, of the same witness. Baltimore Transit Co. v. State, for use of Castranda, Md., 71 A.2d 442, 446-447; Foble v. Knefely, 176 Md. 474, 484-485, 6 A.2d 48, 122 A.L.R. 831, and cases cited. But if any witness's testimony is itself so contradictory that it has no probative force, a jury cannot be invited to speculate about it or to select one or another contradictory statement as the basis of a verdict. Eisenhower v. Baltimore Transit Co., 190 Md. 528, 537-538, 59 A.2d 313, and cases cited. Testimony at the trial which is later corrected by the witness cannot go to the jury as against the later correction.

In Baltimore & Yorktown Turnpike Road v. Cason, 72 Md. 377, 381, 20 A. 113, 114, in reversing a judgment for a...