State v. United Railways & Electric Co. of Baltimore

• Decision Date: 15 April 1932
• Docket Number: 36.
• Citation: 159 A. 916,162 Md. 404
• Parties: STATE, FOR USE OF CHIMA, v. UNITED RAILWAYS & ELECTRIC CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

159 A. 916

162 Md. 404

STATE, FOR USE OF CHIMA, v. UNITED RAILWAYS & ELECTRIC CO. OF BALTIMORE.

No. 36.

Court of Appeals of Maryland

April 15, 1932

Appeal from Baltimore City Court; Samuel K. Dennis, Judge.

Action by the State, for the use of Anna Chima, mother of Theodore B. Dan, deceased, against the United Railways & Electric Company of Baltimore. Judgment for defendant, and plaintiff appeals.

Affirmed.

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

Harry J. Green, of Baltimore (Weinberg & Sweeten and Abraham Davidson, all of Baltimore, on the brief), for appellant.

James J. Lindsay, Jr., of Baltimore (Philip S. Ball, of Baltimore on the brief), for appellee.

PATTISON J.

This appeal is from a judgment for the defendant, the United Railways & Electric Company of Baltimore, appellee, rendered in an action brought against it by the state of Maryland, for the use of Anna Chima, the appellant, to recover for the loss sustained by her in the death of her son, Theodore B. Dan caused, as alleged, by the negligence of the defendant.

It was alleged in the declaration that Theodore B. Dan, "on or about the first day of June, 1930, while the said Dan was a passenger on a street car belonging to the Defendant, and operated by the Defendant, its agents, servants and employes, in an unlawful, negligent and careless manner and at a high rate of speed over the tracks belonging to the said Defendant, which tracks were maintained by the said Defendant in a negligent and careless manner, he was, without any negligence on his part contributing thereto, struck and knocked down when the said street car violently careened and swerved on the said tracks; that in consequence thereof the said Theodore B. Dan then and there sustained injuries of such a serious character that he died; and that said wrongful acts, neglect or default on the part of the Defendant, its agents, servants and employes, were such as would, if death had not ensued, have entitled the said Theodore B. Dan to maintain an action against the said Defendant to recover damages in respect thereof."

The conceded facts of the case were these: Theodore B. Dan, nineteen years old, with four others, Wilbur Clark, Carl Martin, John Martin, and William Louder, boys of his age, planned to visit the Essex skating rink near the city of Baltimore on the evening of June 1, 1930. They were to meet at Fifteenth street and Eastern avenue at 7 o'clock, and ride with Louder in his automobile to Essex. Louder failed to meet the others at the appointed place and time, and, after waiting for him until 7:15 o'clock, they decided to take the Eastern avenue car to Essex. Wilbur Clark and Carl Martin sat in the second seat from the front on the right side of the car. The car was going East. John Martin sat on the front longitudinal seat on the left of the car, while Dan sat alone in the second seat on the left side, next to the window.

Louder, upon reaching Fifteenth street and Eastern avenue, and learning that the other boys had gone on the street car, drove down Eastern avenue until he overtook the car. The road on which Louder was driving was on the north side of the west-bound car track. When he reached the car, he blew his horn, which was heard by those in the car, and Dan, who was seated on the side of the car next to the road on which Louder was driving, looked around and saw him in his automobile. The boys seated on the far side of the car also saw Louder, and they called and waved to each other.

The windows of the car were up. To prevent persons from putting their arms or heads out of the window, an iron screen, eighteen inches in height from the sill, was placed upon the outside of the window. Between the top of the screen and the bottom of the raised window, there was an opening of sixteen and one-quarter inches. In the car there was posted the warning: "Keep your Head and Arms inside of Car."

The accident occurred near the intersection of Southern and Eastern avenues when the car was moving up grade. Prior thereto, it had been on a down grade of 1 per cent., for a short distance. In the dummy track, that is, the space between the east and west-bound tracks, were poles used in connection with the operation of the cars. These were located near the north rail of the east-bound track, and on the side of the car on which Dan was seated. One of the poles was near or at the place where the accident occurred. The evidence of the plaintiff and defendant differs as to how the accident happened. Upon this question the plaintiff's evidence is confined to that of Dan's associates in the car, and Louder in his automobile near the car.

Wilbur Clark, who was seated on the right side of the car, next to the aisle, testified that his attention was attracted to Louder's presence in his automobile by the blowing of his horn, and looking around, he saw the automobile alongside of the street car. "He saw Theodore start to get up, knowing they wanted to get off at the next stop, that is, North Point Road. The car was then just making the grade, just going up the hill at the curve when the car made a sudden curve. * * * The next thing we saw and heard his (Dan's) head hit something, and he saw his cap fly across the car and he had slumped in his seat."

Carl Martin testified that he could not really see Theodore Dan because "Bill (Clark) was in his way, sitting alongside of him. He did not see Theodore Dan do anything. The first he knew that anything had happened was when he heard a dull thud and happened to look over that way and saw Theodore slumped in his seat." He further testified that the car, until it reached the hill at Oak Lawn Cemetery, had been going about twenty-five miles an hour. Thereafter it started to gather speed and "started swaying"; that is "it was just going from side to side." This down grade extended about the length of two blocks, and then the car started "up a short grade and at the top there is a sharp turn to the left. At that curve, or approaching it, the street car made a sudden lurch." He took note of this because, as he said, "Bill (Clark) had slammed against him and nearly was thrown out in the aisle. It was almost at the same time that he heard the thump."

John Martin testified that when he heard the horn blow he saw Bill Louder, and he said to Theodore, " 'There is Bill now, we had better get off' and Bill motioned to him to get off at the next stop. * * * He (Dan) raised to push the bell, but he did not get that far. * * * His hat blew off, and he swung around to catch his hat and he fell against the standard pole." He also testified that the car was "going pretty fast and when it reached the top of the grade it was going so fast that the straps were hitting the side of the car, but the car lurched right before that."

Louder who was in his automobile testified that when he caught up with the street car and came alongside of it, he "blew his horn and attracted John Martin's attention. * * * John turned around * * * and he motioned to John to get off and John just waved back to him." They went along a little further and Theodore, who was in the seat behind John, "started to rise in the seat and it appeared to him that Theodore's hat blew off or Theodore turned around and reached for it and then slumped down in his seat." He was sure that Theodore had not stuck his head out of the window.

There were a number of passengers in the car at the time of the accident. Among them was one, Emic C. Raum, who was seated in the third seat on the right side of the car. He testified that an automobile came up the road, "a roadster, with the top down, with the horn honking, and everybody seemed to be looking at the machine. There was a boy sitting in the seat right in front of him on the other side and this boy got up and waved his hands. The other fellow kept waving his hand at the boy. This was the boy who was afterwards hurt. * * * The fellow in the machine was * * * hollering at the boys in the car. There was a couple of other boys up in the front of the car also hollering." Raum was asked what happened then, and he replied: "Well, this boy, he gets up, and he waves to him and sticks his head out of the car over top of the rail, and there is a screen on the car so you could not stick your arms there, and he stuck his head over and a pole hit him and he fell right back in the car and sit there, and I picked him up." This witness got on the car at Fairmount avenue and Wolfe street, and he testified further, that, "as the car got to where the accident occurred, it was going at a regular rate of speed. * * * The car was not being operated faster than usual, it was going at a moderate rate of speed. It was not going faster because it was going uphill at the time, just getting ready to make the curve. * * * At the time the accident occurred, there was no unnecessary swaying. * * * The noise was sort of a thud. * * * He did not feel any lurch."

Joseph A. Calder, likewise a passenger on the car testified that when the roadster pulled up, the driver of the automobile "called to this young gentleman in the front and waved, and the young gentleman in front who was killed did the same. That is what called his attention to them. * * * When the street car hit the curve, Dan got up and looked out. There is a wooden pole there and it struck Dan a glancing blow and Dan fell in on the seat. * * * The street car was running from 18 to 20 miles an hour * * * was not swaying from side to side," and it "was not jostling him around, in the seat one bit."

Gertrude I. Hughes, another passenger, was seated on the right-hand side of the car about three seats from the front. She observed all the boys; there were several boys together three or four...