United Rys. & Electric Co. v. Dean
| Decision Date | 27 March 1912 |
| Citation | 84 A. 75,117 Md. 686 |
| Parties | UNITED RYS. & ELECTRIC CO. v. DEAN. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Carroll County; Wm. H. Thomas, Judge.
Action by J. Nathan Dean against the United Railways & Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, PATTISON URNER, and STOCKBRIDGE, JJ.
Guy W Steele, for appellant.
T Scott Offutt and Robert H. Archer, Jr., for appellee.
The principles of law controlling this class of negligence cases are well established by a number of decisions of this and other state courts. The chief difficulty consists in a proper application of them to the state of facts presented on the record in each case.
The plaintiff brought this suit in the circuit court for Baltimore county, on the 16th day of January, 1911, against the defendant, the United Railways & Electric Company, to recover damages for personal injuries received by him while a passenger on the railway, on its route from Baltimore city to Towson, in Baltimore county. On the 15th day of April, 1911, the case was removed to the circuit court for Carroll county for trial, and from a judgment entered in that court in favor of the plaintiff for the sum of $1,800 and costs, the defendant has appealed.
The rulings of the court below upon the defendant's demurrer to the declaration, the overruling of its motion for a rule for bill of particulars, and its exception to the action of the court in dismissing the defendant's petition for payment of costs of the former trial (where the plaintiff submitted to a non pros, before suit in this case, the cause of action being the same in both cases), were waived in this court, and are not pressed in the argument in the brief.
The questions for our consideration on the record now before us arise upon 24 bills of exceptions reserved by the defendant, during the trial of the case, on rulings of the court upon the evidence and the prayers. Twenty-two of these present rulings of the court upon the evidence. The first, fourth, fifth, seventeenth, nineteenth, and twentieth were abandoned at the hearing, and are not discussed by the appellant in its brief. The twenty-third and twenty-fourth exceptions relate to the court's rulings on the prayers.
At the trial of the case, the plaintiff presented 4 prayers, all of which were granted. The defendant offered 16 prayers, and of these the second, third, fourth, fifth, sixth, seventh, and fifteenth were granted. The twelfth was granted, as modified; but the defendant's first, eighth, ninth, tenth, eleventh, thirteenth, fourteenth, and sixteenth prayers were rejected. The rulings of the court in granting the plaintiff's prayers, the modification of the defendant's twelfth prayer, and the rejection of eight of the defendant's prayers form the basis of the twenty-fourth exception.
The facts set out in the record before us, and on which the rulings of the court below are based, briefly stated, are these: The defendant is a corporation, and operates an electric railway in Baltimore city and Baltimore county. The plaintiff is a resident of Harford county, and on the 10th of July, 1910, was a passenger of the defendant company from Baltimore to Towson. He left Baltimore city to return to his home in Bel Air, Harford county, at 9 o'clock on the night of the accident, and took a car at Ranier avenue and Tenth street, and transferred to the York Road car to Towson, and from there he took the train to Bel Air. The car upon which the appellee was riding was derailed; as it approached the overhead bridge crossing of the Maryland & Pennsylvania Railroad, near Susquehanna avenue, Towson, it jumped the track and struck a telegraph pole and pile of lumber.
The plaintiff testified that at the time of the accident he was sitting about the center of the car, on its right-hand side, and remained in the same position during the entire transit. "I was sitting with my foot up on the side rail. There is a little projection out; I had my foot upon that. They had small transverse seats, which seat two, just like a steam car has. Going out from Govanstown to Towson, the car was traveling at a very high rate of speed. I suppose there were 10 people on the car, which was traveling very fast. You could see by the side; you could tell by the feel of it. When it was going through the curve (reverse curve) and over the switches, the car started to wabble, and it never straightened up any more until it jumped the track. They never slackened up for the curve at all. When it went through the curve, it shook the people in the car. When the car left the track, it threw me forward and jammed my knee between the seat there and the window. My leg was jammed in between the two. It was jammed in there as far as it would go; it was jammed in there pretty tight; and it remained in there until the car struck the telephone pole or a pile of lumber. It threw my body forward, and my head and shoulder against the seat in front of me. Then it jerked my leg out, and I fell to the floor. The first jar locked my knee in there, and the second jar struck my head against the back of the seat and my shoulder. Then it jerked me loose and threw me out on the floor. One lady in the car fell to the floor, that was standing up. She came back to where her husband was sitting with a baby in his arms, and tried to get the baby. She was thrown to the floor. A woman sitting up on the front seat, a colored woman, was thrown to the floor right off the seat. The driving of my leg in there between the edge of the seat and side of the car, and then wrenching it out and throwing me on the floor, twisted my hip loose, made a little lump on my head. My shoulder struck the hardest on the seat. The car was at a right angle with the tracks, and the end of the car was partly across the south-bound tracks. It projected far enough to prevent cars from going southward;blocked the traffic at that point until after that train went up (the 11:20 train from Bel Air). I looked at the track. The roadbed there was torn up. In between the tracks was torn up. The cobble stones and the track at that point was torn up, just below where the car was standing towards Baltimore, I suppose, six feet, probably eight, something like that. They were torn up on both sides of the rail. One end of the rail was sticking about that far above the other rail (indicating about four inches). I suppose it was a joint. I don't know whether it was broken or not. A pile of timber was in front of the car--long timbers. I couldn't say positive what they were-whether they were ties, or what they were. The car was jammed up tight against it, and the fender was mashed up to one side. There was a mark on the telegraph pole, and some one said at the time, "Look where she struck the telegraph pole."
Dr. Purnell F. Sappington testified that he was called to see the plaintiff after the accident, and that he found him suffering with pain in the hip and down the course of the nerve supply, the upper and lower leg. He diagnosed his injuries as a dislocation of the sacroilliac joint, and technically known as a sacroilliac subluxation. He also testified that the injury was permanent, would interfere with his ability to walk without inconvenience, and it would give him pain. Dr. Frederick H. Baetger, on the staff of the Johns Hopkins University, Baltimore, made an X-ray plate of the injured joint and confirmed the diagnosis of Dr. Sappington. The testimony of Dr. Howell Billingslea, who examined the plaintiff shortly before the trial, was to the effect that the diagnosis of Dr. Sappington was correct, and there was an injury to the sciatic nerve, and just such an injury as had been testified to by the plaintiff's witnesses.
The witnesses Quickly, Robinson, and Driver, who were on the car at the time of the accident, each testified to the excessive speed of the car as it approached Towson, and that it did not slow up when going through the reverse curve on the track; that two or three of the passengers were knocked from the seat when the car jumped the track and struck the pile of lumber.
The testimony on the part of the defendant tended to show that the car was running at the usual rate of speed; that it slowed up as it approached the curve; that the track was in good condition; and that the car had been inspected, before leaving the barn, on the day of the accident, and the car was in good order, except one of the side slides that carried the weight of the body on one side was bent, and the other one was broken. The witness Frazier testified, upon cross-examination, that both of the slides on that truck were out of order.
There was also conflict in the medical testimony of the X-ray experts, Drs. Baetger and Cotton, as to their interpretation of the X-ray plates submitted as evidence in the case. Drs. Harrison, Fitzhugh, and Woodward, who testified on the part of the defendant, did not concur with Drs. Baetger, Sappington, and Billingslea as to their diagnosis, and could not convince themselves, after an examination of the plaintiff, "that he had a subluxation of the right sacroilliac joint, or that the injury was permanent."
Upon these and the other facts set out in the record, we think the case was one for the consideration of a jury. The alleged negligence of the appellant was not a question of law for the court, but one of fact to be determined by the...
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