State v. Emerson & Morgan Coal Co., Inc.

• Decision Date: 08 April 1926
• Docket Number: 43.
• Citation: State v. Emerson & Morgan Coal Co., Inc., 133 A. 601, 150 Md. 429 (Md. 1926)
• Parties: STATE, FOR USE OF THOMPSON ET AL., v. EMERSON & MORGAN COAL CO., INC.
• Court: Maryland Court of Appeals

133 A. 601

150 Md. 429

STATE, FOR USE OF THOMPSON ET AL., v. EMERSON & MORGAN COAL CO., INC.

No. 43.

Court of Appeals of Maryland

April 8, 1926

Appeal from Superior Court of Baltimore City; Charles F. Stein Judge.

Suit by the State of Maryland, for the use of Joseph M. Thompson surviving husband, and others, surviving minor children of Grace Thompson, deceased, against the Emerson & Morgan Coal Company, Inc. Judgment for defendant, and plaintiffs appeal. Reversed and remanded for new trial.

Bond C.J., dissenting.

Argued before BOND, C.J., and PATTISON, ADKINS, OFFUTT, DIGGES, PARKE, and WALSH, JJ.

Isaac Lobe Straus, of Baltimore (Stephen J. McDonough, of Baltimore, on the brief), for appellants.

Robert D. Bartlett, of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellee.

OFFUTT J.

The Emerson & Morgan Coal Company, Inc., was on April 24, 1924, engaged in the business of selling and delivering coal in the city of Baltimore. Shortly before 2 o'clock in the afternoon of that day one of its trucks loaded with 2 1/2 tons of coal backed up at a right angle to the curb in front of 324 on the west side of N. Monroe street in that city for the purpose of delivering the coal into the cellar of that house. The truck was furnished with a chute and a hoisting mechanism, which were used to unload it. In unloading the truck, the chute, which was a steel trough, was attached to the rear end of the truck body, and extended through a window into the cellar of the house. The truck body with its load of coal was then elevated by the hoisting mechanism so that the floor of the truck and the chute formed a continuous plane inclined at such an angle that the coal would slide by gravity from the truck body into the chute and through it into the cellar. At the time the accident which is the basis of this suit happened, the chute had been adjusted, and the body of the truck elevated, and two of the appellee's employees were engaged in unloading the coal. One of them stood at the rear of the truck controlling the volume of the flow of coal by manipulating the flood gate, and the other had his head in the cellar window, directing the course of the flow of the coal running through the chute into the cellar.

The truck itself extended east across a part of the south-bound car tracks on Monroe street, so that the truck and the chute together formed an obstruction across the entire sidewalk on the west side of Monroe street, the space between the sidewalk and the car tracks, and a part of the south-bound car track.

Whilst the truck was in that position, Mrs. Joseph M. Thompson, wheeling a baby carriage, going north on Monroe street, approached and attempted to cross under the chute. She had pushed the carriage under it and was in the act of going under it herself, when it collapsed, striking her, crushing her to the pavement and inflicting injuries, from which she died a short time afterwards.

She left to survive her a husband and four children, aged from 10 months to 12 years, and on June 21, 1924, this suit was brought in the name of the state for their use to recover for the loss which they claim to have suffered as a result of her death, which they say was occasioned by the defendant's negligence. The case was tried before the court and a jury in the superior court of Baltimore City, and, that verdict and judgment at that trial being for the defendant, the plaintiffs appealed.

The record contains 18 bills of exception which were signed on the 30th of December, 1925. The judgment was entered on August 25, 1925, and on December 7, 1925, the court signed an order extending the time for signing the several bills of exception to January 8, 1926, and for submitting the exceptions to appellee's attorneys to December 18, 1925. The appellee now moves to dismiss the appeal, on the ground that the bills were not submitted to its counsel until December 18, 1925, although under the statute they should have been submitted to them not later than December 5, 1925, and upon the further ground that the record was not paid for within the time prescribed by the rules of this court. When the bills were submitted to the attorneys for the appellee, they suggested certain changes which appear to have been made before the bills were actually signed and filed, so that it suffered no injury through the failure of the appellants to submit the exceptions for their inspection within the time required by the statute. Chapter 338, Acts 1924. These points were not pressed at the argument of the case, and in regard to them it is sufficient to say (1) that the first point is concluded by the case of Wegefarth v. Weissner, 132 Md. 603, 106 A. 854, where it was held that, under chapter 625 of the Acts of 1916, which for the purposes of this question is similar to the present act, the trial court could for "good and sufficient reasons" extend the time for signing the bills of exceptions beyond the period designated by the statute, and, by the case of Middendorf v. Milburn Co., 137 Md. 595, 113 A. 348, where it was held that, although the bills of exception in that case were not submitted to the attorneys for the appellee before the expiration of the time "provided by the statute, but, nevertheless, they were signed by the court within the expiration of the time limited by the statute," they were valid because it did not appear that the appellee "suffered any injury thereby"; (2) as to the second point, that the appellant failed to pay or secure payment for printing the record within the time fixed by rule 36 of this court, we do not feel that we have before us sufficient data to pass upon the question. The appellee suggests to the court that an estimate of the cost of printing the record had been sent by the clerk of this court to the attorneys for the appellant on January 8, 1926, and that the attorneys for the appellees were "advised" by the clerk, on January 22d and January 27th, that he had "heard nothing from the attorneys in reply," but it does not appear how the notice was sent or when it was received. The appellant, by way of reply to these allegations, avers that its attorneys, "within a comparatively short time" after receiving the estimate of the cost of printing the record, directed the printer to "proceed with the printing" and arranged to pay therefor. Manifestly that would be no answer at all, for the rule requires that the cost of printing the record shall be paid or secured "to the clerk within 10 days from the receipt of such notice," and the appellant cannot escape the effect of the rule by employing a printer independently of the clerk to print the record, at such time as he may deem convenient and in a proper case where a failure to comply with the rule injures the appellee such failure would be ground for dismissing the appeal. But since in this case it does not appear, except from hearsay, when the notice was sent, or, from any source, how it was sent or when it was received, and since it does appear that the appellee was not injured by the delay, the second ground set out in the motion to dismiss the appeal is not sufficient, and the motion will be overruled. Mayor, etc., of Havre de Grace, 112 Md. 562, 77 A. 114; Jacobs v. Disharoon, 113 Md. 92, 77 A. 258; Ger. Un. Co. v. Cohen, 114 Md. 130, 78 A. 911.

Seventeen of the 18 exceptions relate to rulings of the trial court upon questions of evidence, and the eighteenth to its rulings on the prayers and the exceptions thereto. Before attempting to deal with these exceptions seriatim, we will refer briefly and generally to the effect of the evidence relating to them.

It is not clear that the appellant had any definite theory as to the cause of the accident. Its witnesses could not, or at least they did not, express any opinion upon that point. George P. Black, a police officer, in describing the hoisting mechanism, said that the cart, while it was elevated by means of the hoisting mechanism, was suspended from chains, one end of which was attached to an "eyelet" in the top of a steel upright on either side of the truck and the other to the bottom of the truck; that one of these eyelets looked "old and worn"; and that it was worn down, so that the chain pulled through it and was hanging down, but he did not say or intimate that the accident was caused by that condition of the eyelet, and, in the absence of any satisfactory description of the hoisting mechanism, it is impossible for us to say that the condition of the eyelet described by the witness had anything to do with the accident. The same witness further said that there was no broken link in the chain, but that the eyelet was "broken." August P. W. Desor said that he saw one of the men with the truck take from it what looked like a broken chain. Officer Claude E. Long testified that he saw the truck shortly after the accident, and that he found that the "eye"on the upright on the right side of the truck was worn and broken, so that the chain pulled through but that the chain itself was not broken; that he did not know why the truck body fell, but "judged" that it was because the chain pulled through the eyelet. There was other testimony offered by the appellant tending to show that just before the accident and before it had been elevated the rear end of the truck was about 4 or 5 feet from the ground at the curb, and that after the chute fell Mrs. Thompson was found under it partly covered with coal, and that the baby had been thrown from its carriage, which was overturned when Mrs. Thompson, who was pushing it, was struck and fell. The effect of this testimony is that as Mrs. Thompson was passing under the chute, for some cause not clearly shown by the testimony, it fell on her and caused the injuries from which she ...