Thomas v. Baltimore Transit Co.

• Decision Date: 19 November 1956
• Docket Number: No. 22,22
• Citation: 127 A.2d 128,211 Md. 262
• Parties: Allce V. THOMAS et al. v. The BALTIMORE TRANSIT COMPANY.
• Court: Maryland Court of Appeals

Page 262

211 Md. 262

127 A.2d 128

Allce V. THOMAS et al. v. The BALTIMORE TRANSIT COMPANY.

No. 22.

Court of Appeals of Maryland.

Nov. 19, 1956.

Amos I. Meyers and Robert S. Rody, Baltimore, for appellants.

Benjamin C. Howard, Baltimore (Patrick A. O'Doherty, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., COLLINS, WILLIAM L. HENDERSON and HAMMOND, JJ., and GEORGE HENDERSON, Special Judge.

GEORGE HENDERSON, Special Judge.

Alice V. Thomas and her husband, Nobel Henry Thomas, brought suit against The Baltimore Transit Company for damages resulting from personal injuries suffered by Alice V. Thomas while a passenger on one of the Transit Company's trolley cars. There was a verdict for the defendant, whereupon this appeal was taken. It is based on three grounds: first, that the jury was instructed to consider whether she had been guilty of contributory negligence, when there was no evidence of negligence on her part; second, whether the trial court erroneously struck out the testimony of a physician regarding his findings as to her condition; third, that the trial court erroneously had refused to permit plaintiffs' counsel to ask certain hypothetical questions.

On November 14, 1952, about 5:00 p. m. Alice V. Thomas was a passenger on one of the Transit Company's trolley cars which was going west on Fayette Street. At St. Paul Street it was stopped by a red light. Since her destination was Charles Street, one block away, Mrs. Thomas walked to the front of the car in order to be ready to alight. She remained standing, but she placed her handbag on the seat near her. There were vacant spaces on this seat which runs along with and parallel to the righthand side of the car. She held on with both hands, she says, to an overhead leather strap. (The photo of the car in question shows no overhead leather traps or handgrips on the right side. There is a bar running horizontally above the seats and at about the height of the bar on the opposite side of the car to which are attached handgrips. And there are several vertical bars or stanchions running from the floor up to the gripless horizontal bar, and which could be grasped by those near them. One of these is only a short distance from the front entrance.)

When the light changed to green the motorman started his car. When it had gone forward about twenty feet or so he was stopped by the traffic officer who was then temporarily directing traffic from 'where the bus island is out there now,'. This was done because westbound traffic had backed up from Charles Street, so that the trolley, if allowed to proceed, would have blocked northbound traffic on St. Paul Street. There is a difference in the testimony as to the suddenness of the stop. But there is testimony that Mrs. Thomas was thrown forward and down on the right side seat, and that she immediately complained of pain in her back. After a short interval the car was able to move forward to the far side of St. Paul Street, where Mrs. Thomas was helped off the car and was taken to a hospital. It was discovered she had been afflicted with Paget's disease, an inflammation of the bones, which is probably incurable. An x-ray revealed 'she sustained lumbro-sacral sprain', presumably as a result of the accident.

There was a general verdict for the defendant in the Court of Common Pleas of Baltimore; and, since the jury was permitted to pass on the negligence vel non of the plaintiff, it is not possible to tell whether this was based on a finding that the defendant was not negligent or that plaintiff herself was. Therefore it is necessary to determine whether the actions of plaintiff were such that the jury could be permitted to consider this question.

In the instructions to the jury there were five different places at which the possibility of the contributory negligence of the plaintiff was mentioned. When plaintiff's counsel objected that the only act of plaintiff which could possibly be considered negligent was 'that the Plaintiff was not sitting in a seat, which, I do not think, makes for negligence as a matter of law,' the trial judge refused to recognize the force of the objection and gave his reasons as follows:

'* * * I stated the other day the reasons that I believe the matter of contributory negligence was one to be submitted to the Jury. That conclusion was based particularly upon the Plaintiff's own testimony when she said that she had gotten out of her seat to walk to the front of the car in order to get off at Charles Street because 'You are not supposed to walk in the car when it is going', showing she herself realized the dangers to a passenger while riding on a street car, and moreover the evidence shows that although she was conscious of these dangers she elected to stand in the car instead of sitting down although there were plenty of seats available at the point where she was standing and in other parts of the street car. That she was probably more familiar with her own frailties than anyone else might be indicated by her statement that she should not walk while the car was in motion. I think that in view of all these facts it cannot be said as a matter of law that she was not guilty of any contributory negligence in the matter and that therefore it was a question for the Jury to determine.'

It will be recalled that it was while the car was stopped on the east side of St. Paul Street that plaintiff walked forward to the front of the car and that she remained standing, but holding on to a strap (according to her but to an upright bar or stanchion according to some witnesses) although there were vacant spaces on the seat beside her.

The reasoning of the trial judge is evidently based at least partly on the assumption as to Mrs. Thomas 'That she was probably more familiar with her frailties than anyone else might be indicated by her statement that she should not walk while the car was in motion.' It is true that she was afflicted with Paget's disease, but there is no evidence whatever that she knew it. For some years she had been doing most of the household work for Mr. and Mrs. Hobbs, traveling to work and back by trolley five days a week up to the time of the accident. Also, Paget's disease is often asymptomatic until injury, as is shown by the testimony of Drs. Copeland and Levin. Her own attending physician did not know about this disease of hers until just before the trial.

Nor should her statement about not walking while the car is in motion be interpreted that she...