Smith v. Baltimore Transit Co.

• Decision Date: 22 November 1957
• Docket Number: No. 55,55
• Citation: 136 A.2d 386,214 Md. 560
• Parties: Elsie P. SMITH v. The BALTIMORE TRANSIT CO., and John William Dickel.
• Court: Maryland Court of Appeals

Page 560

214 Md. 560

136 A.2d 386

Elsie P. SMITH v. The BALTIMORE TRANSIT CO., and John William Dickel.

No. 55.

Court of Appeals of Maryland.

Nov. 22, 1957.

Wylie L. Ritchey, Baltimore, for appellant.

John E. Boerner, Baltimore (James J. Lindsay and Patrick A. O'Doherty, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and COLLINS, ^* HENDERSON, HAMMOND and PRESCOTT, JJ.

PER CURIAM.

This is an appeal by Elsie P. Smith, plaintiff, appellant, from a judgment for costs entered in favor of the Baltimore Transit Company and John William Dickel, defendants, appellees, as a result of the granting of a directed verdict in favor of the defendants in a suit by the plaintiff against the defendants.

Plaintiff, about 5:45 P.M. on January 2, 1954, boarded a bus of the Transit Company at Howard and Redwood Streets in Baltimore on her way home from work. It had been snowing and sleeting continuously for a period of from eighteen to twenty hours prior to that time. There were at least three inches or more of snow and ice covering the streets and roads of Baltimore City and Baltimore County at the time plaintiff boarded the bus and at the scene of the accident in question at about 7:15 P.M. that evening.

Mr. Dickel, the operator of the bus, had been operating it for approximately six hours, prior to the time of the accident. He was a regular bus operator for the Transit Company and had made several trips on this particular run. He stated that the roads were slippery and everyone was slipping and sliding 'a little', especially on hills. He stated that at Butler Road and Railroad Avenue in Glyndon, where the accident happened, the construction of the road 'is like a blade, macadamized, and it has a crown in the center, which means it slants towards the right and left. * * * Toward the curb.' Snowplows had been through and had pushed the snow from the center of the road toward the curb. The bus had had difficulty on the way out from Baltimore City on account of the slippery road conditions and had skidded and slipped on hills prior to the accident. At one time on this trip, the driver was unable to allow a passenger to alight at a regular stop because it was in the middle of a hill. He took the passenger to the top of the hill, advising her that he could not stop in the middle because he did not believe he could get the bus started again. The bus proceeded and pulled into the stop at Butler Road and Railroad Avenue, immediately prior to which the plaintiff had arisen from her seat, walked to the front of the bus and deposited her fare in the fare box. The bus came to a stop with its right rear wheel against the curb and the operator opened the right front door. Plaintiff stepped down to the last step and, while she was in a position with one foot raised to step out of the bus, the right front wheel of the bus slid sideways and struck the curb, which was eight to ten inches high, with such force that it threw the plaintiff on the pavement. As a result she sustained the injury complained of.

A member of the Baltimore County Police Department testified that, when he arrived at the scene shortly after the accident, he observed 'A sideway skid mark from the right front wheel of the bus to the curb approximately a foot in length.' As pointed out by the learned trial judge, in his explanation to the jury as to why he was granting a directed verdict, it was not developed in the trial from what point the officer made the measurement but it was fair to assume that the measurement was an overall measurement, that is to say, that part of the skid mark would actually include the width of the tire. As is well known, the tires on buses are rather large. It therefore seems, from the officer's testimony, that the front end of the bus did not slide a total distance of twelve inches but rather the difference between the width of the tire and the distance to the snow against the curb or the curb against which the wheel bumped.

Like the plaintiff, we are unable to find an exactly similar situation in the Maryland cases.

Plaintiff relies on a number of out of state cases, among which are the following: Schwartz v. Brooklyn & Queens Transit Corp., 264 App.Div. 905, 36 N.Y.S.2d 70, 71; Cordes v. Surface Transportation Corp., Sup., 40 N.Y.S.2d 878; Heidt v. People's Motorbus Co. of St. Louis, Mo. App., 9 S.W.2d 650, and Newell v. Brooklyn Bus Corp., 255 App.Div. 857, 7 N.Y.S.2d 512. In Schwartz v. Brooklyn & Queens Transit Corp., supra, plaintiff was about to board the defendant's trolley car at a street intersection. She slipped and fell upon ice six feet in width, which extended from four to five feet from the car track toward the curb. There were other places along the track nearby which were free of ice. The lower court dismissed the complaint at the close of plaintiff's case because the negligence on the part of the defendant was not proved and because the plaintiff was guilty of contributory negligence as a matter of law. On appeal it was found that the mere fact that the plaintiff knew of the existence of the ice was not of itself sufficient to charge her with contributory negligence as a matter of law. It was further held that it was the duty of the defendant to furnish the plaintiff with a reasonably safe place from which to board the car and that that negligence was a question of fact for the jury. However, in that case, as above stated, there were places nearby free from ice. Such was not the fact in the instant case. In Cordes v. Surface Transp. Corp., supra, plaintiff, a passenger on a bus, gave a signal of her desire to alight. The operator stopped and she said he directed her to leave by the side door exist, which was some distance from the sidewalk curb with an intervening pile of snow between the exit steps and the sidewalk curb. As she put her foot on the curb she slipped on the accumulated ice and snow, fell and sustained injuries. The court held that it was the duty of the defendant to furnish the passenger with a reasonable and safe place in which to leave the bus. The questions of primary negligence and contributory negligence were submitted to the jury, which found for the plaintiff and the judgment was affirmed. In that case it was not stated whether snow and ice covered the entire ground or just the place where the passenger was compelled to alight.

In the instant case, according to the evidence, all of the ground was covered with ice and snow. Even if the bus had stopped with its front wheel against the curb, the passenger would still have been obliged to alight on ice and snow. In Heidt v. People's Motorbus Co. of St. Louis, supra, plaintiff was riding in a bus on a seat next to the aisle, on a crowned road which was slippery due to rain. The bus slid sideways and struck the curb and the jerk threw plaintiff from her seat to the floor whereby she sustained injuries. The case was submitted to the jury and the judgment for the plaintiff was affirmed. In that case the plaintiff testified as to the jerk the fact that she was thrown from the seat and she had no knowledge as to what caused the motor bus to jerk or jolt. It was there held that, since plaintiff's testimony did not show just what specific act caused the accident, the doctrine of res ipsa loquitur applied. Such is not the case here.

The plaintiff contends that the doctrine of res ipsa loquitur applies in the instant case. We do not agree with this contention. Chief Judge Sobeloff, in the case of Hickory Transfer Co. v. Nezbed, 202 Md. 253, 96 A.2d 241, 245, in discussing that doctrine, stated that in some cases, the injured party may show the happening of the event and rest, and in lieu of direct proof of negligence he may rely on the inference of negligence to be deduced from all the circumstances. In such a case 'the thing speaks for itself' or res ipsa loquitur. However, where the plaintiff himself proves the details of the happening and having undertaken to prove the details, he has foregone reliance on res ipsa loquitur. Here, the plaintiff proved by her own testimony that the cause of the accident was the slipping of the front wheel of the bus. Therefore, the...