Retkowsky v. Baltimore Transit Co.

• Decision Date: 18 May 1960
• Docket Number: No. 222,222
• Citation: 160 A.2d 791,222 Md. 433
• Parties: Helen RETKOWSKY v. BALTIMORE TRANSIT COMPANY.
• Court: Maryland Court of Appeals

Page 433

222 Md. 433

160 A.2d 791

Helen RETKOWSKY v. BALTIMORE TRANSIT COMPANY.

No. 222.

Court of Appeals of Maryland.

May 18, 1960.

Harold Buchman and Charles A. Friedman, Baltimore (Lawrence B. Coshnear, Baltimore, on the brief), for appellant.

George P. Bowie, Baltimore (John E. Boerner, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

This is another case in which the plaintiff attempted to establish negligence on the part of a common carrier by an adjectival description of an alleged sudden start of one of the defendant's streetcars. The trial judge granted a motion for a directed verdict in favor of the carrier after both sides had concluded their testimony, and the plaintiff has appealed.

The evidence must, of course, be viewed in the light most favorable to the appellant. On November 9, 1957, the plaintiff, Helen Retkowsky, a woman 66 years of age, in good health, boarded a streetcar carrying two shopping bags. She characterized the weight of the bags as medium and said that she 'could carry them all right.' After getting on the car, she set one bag down, deposited her money in the fare box with her right hand, said to the operator, 'just a minute,' and started to turn around. As she got 'turned around in front of the box, the operator started and threw me right down on the floor--set me right down in a sitting position.' The operator saw her get on the streetcar carrying her shopping bags and also saw her put one of the bags by the fare box and deposit her fare.

She stated the streetcar started with a 'very sudden jerk,' which threw her off balance; that she had been riding on streetcars for thirty years or more, but had never before experienced a jerk of that intensity; 'it was very bad to throw me down like that.' She was standing right 'alongside' the driver when she turned--her back right up against the coin box. She had not made any move to walk. Her right said was to the driver. When she turned, she said she had no chance to do anything; the start of the streetcar jarred her and set her right down on the floor. She was intending, before she fell, to sit in the seat right behind the driver. She didn't get there, however, because it all happened so suddenly.

No one else was standing in the streetcar at the time and no one else fell. The only support she could have grasped, she said, was the operator of the streetcar or the window in back of him. The bag she had put down on the floor was turned over, and the other bag that she had been holding in her left hand was loosened therefrom, by the jolt. It was also lying on the floor. After her fall, the plaintiff pulled herself up by the vertical pole to her left, 'the rail that divides going in and out of the streetcar.' She then sat down on the seat behind the driver. In response to the driver's question: 'Did you hurt yourself?', she replied, 'I don't know, but I think I wrenched my back.'

On cross-examination, Mrs. Retkowsky was shown a photograph of the interior of the streetcar and pointed to a pole right behind the driver's seat and to another on the other side which she had used to pull herself up. She stated that the pole behind the driver was the only support available to her. To counsel's question: 'You turned around and at the time you were turning you were saying, 'just a minute' and at that time you were on the floor, is that correct?' she answered, 'That's correct.' The accident happened 'in the matter of a second or so.'

The plaintiff offered no witness other than herself with respect to the happening of the accident. The defendant's two witnesses, one a passenger on the streetcar, the other the operator, stated that the streetcar made no unusual start after the plaintiff got on. They both testified that after the plaintiff put her one bag down and paid her fare, she picked the bag up and started walking to the rear of the car, and had gone about three to five steps before she fell down. The streetcar had gone at least three or four lengths and was moving at the time. The operator said he started the streetcar a second or two after the plaintiff picked up her bag. He said that he heard a noise about ten or fifteen seconds thereafter, and he looked into his rear-view mirror and saw Mrs. Retkowsky on the floor trying to get up. She was sitting between the two upright poles, one of which was three feet from the fare box, and the other four feet from the box. The driver said that the plaintiff did not say anything to him prior to her fall. He did not remember whether he had closed the door after she got on. This concluded the testimony.

The appellant frankly states that she is not unmindful of this Court's pronouncements in such cases as Sunthimer v. Baltimore Transit Co., 217 Md. 52, 141 A.2d 527; Smith v. Baltimore Transit Co., 211 Md. 529, 128 A.2d 413; Jones v. Altimore Transit Co., 211 Md. 423, 127 A.2d 649; Baltimore Transit Co. v. Sun Cab Co., 210 Md. 555, 124 A.2d 567; Kaufman v. Baltimore Transit Co., 197 Md. 141, 78 A.2d 464; Przyborowski v. Baltimore Transit Co., 191 Md. 63, 59 A.2d 687; Baltimore & Yorktown Turnpike Road v. Cason, 72 Md. 377, 20 A. 113, and Callis v. United Railways & Electric Co., 128 Md. 406, 97 A. 715, concerning the duty of a passenger, once on board a public carrier, to use reasonable care to protect himself against the normal motions of the vehicles incident to public transportation, and the proof required of a plaintiff who attempts to establish negligence on the part of the operator of a carrier by the use of strong adjectives or expletives characterizing a stop or a start.

If we should analyse in detail the ruling in the cases above cited (as well as the Maryland cases that have permitted recoveries by plaintiffs in similar cases), it would be pure repetition for Judge Hammond in the Sun Cab Co. and Jones cases, Judge Henderson in the Przyborowski case and Judge Markell in the Kaufman case did so thoroughly. The rationale of these cases (and this seems to be the general rule elsewhere) is succinctly and accurately stated by Judge Chesnut in Johnston v. Greyhound Corporation, D.C., 139 F.Supp. 551, 555, as follows:

'* * * a plaintiff passenger does not make out a valid case of negligence, based on an alleged sudden start or stop of a bus or trolley car, merely by adjectival descriptions of the nature of the sudden start or stop, in the absence of some definite, factual incident thereof which makes it so abnormal and extraordinary that it can be legally found to have constituted negligence in operation.'

The appellant attempts to bring this case, upon a factual basis, within the purview of the Maryland cases that have permitted recoveries; but, in her evidence as we have outlined it above, we are unable to discover outside...