Washington, B. & A.R. Co. v. State

• Decision Date: 18 February 1920
• Docket Number: 9.
• Parties: WASHINGTON, B. & A. R. CO. v. STATE to Use of HALL et al.
• Court: Maryland Court of Appeals

111 A. 164

136 Md. 103

WASHINGTON, B. & A. R. CO. v. STATE to Use of HALL et al.

No. 9.

Court of Appeals of Maryland

February 18, 1920

Appeal from Superior Court of Baltimore City; Carroll T. Bond Judge.

Action by the State, to the Use of Amelia Hall and another, against the Washington, Baltimore & Annapolis Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER and STOCKBRIDGE, JJ.

L Vernon Miller and Frank Gosnell, both of Baltimore (Marbury Gosnell & Williams, of Baltimore, on the brief), for appellant.

J. Le Roy Hopkins, of Baltimore (Osborne I. Yellott and F. I. Gruebel, both of Baltimore, on the brief), for appellees.

BOYD C.J.

This is an appeal from a judgment rendered against the appellant for the death of Maria L. Hall, the daughter of Amelia Hall and mother of Naomi Hall, an infant, which resulted from a collision between an automobile, in which she was riding, and one of the cars of the appellant. There are seven bills of exception presenting rulings on the admissibility of evidence and one embracing the rulings on the prayers. Three prayers of the plaintiff were offered, all of which were granted, with some modifications of the second and third, and 12 were offered by the defendant, 6 of which were granted, but prayers 1, 2, 3, 3 1/2, 6, and 9 were rejected. Some special exceptions to the plaintiff's prayers were overruled. To the granting of the plaintiff's prayers and to the rejection of the defendant's six prayers exceptions were taken.

As the rulings on the prayers present the important questions we will first consider them. Frank Kratzmeyer, who owned a Chalmers roadster, took E. J. T. Jockell, Miss Van Fossen, and Miss Hall out riding on Sunday night, March 25, 1917, and the collision occurred about 11:30 p. m., which resulted in injuries to Miss Hall, from which she died on April 5th. She lived with her mother, Mrs. Amelia Hall, and contributed to her support. Naomi Hall is her daughter, being 12 years of age in July, 1919, and the father of Naomi was said to be George Kelly, to whom the equitable plaintiffs claim Miss Hall was married, but that she was with him only one day and night, and she continued to use her maiden name. The four persons named above were on the front seat of the automobile. Kratzmeyer was driving, Miss Van Fossen was sitting next to him, on his left, Miss Hall next to her, and Jockell was sitting partly on her lap and partly on the "beading" of the automobile, with his left foot on the step as he describes it in the record. Scott street runs north and south, and has two tracks on which the cars of the appellant run in going between Baltimore and Washington and Annapolis. Hamburg street runs east and west. The automobile was going west on Hamburg street, towards Scott street, and the car of the appellant was coming from Washington on the north-bound track-having left there at 10:05 p. m. There is an elevated viaduct some distance south of where the accident happened. The engineer of maintenance of way of the appellant testified that the bottom of the incline was 1,155 feet from the north building line of Hamburg street, which street is 38.5 feet wide from curb to curb, and has sidewalks of 13.5 feet on each side. Kratzmeyer and Jockell were called as witnesses, but Miss Van Fossen was not.

Although there were conflicting statements made by the witnesses as to the speed of the electric car and of the automobile, as well as to whether any signals were given by the car as it approached Hamburg street, it would be difficult for Kratzmeyer to avoid the effects of his contributory negligence if this was a suit by him. While the accident occurred in a part of the city which is closely built up, the evidence shows that it was Sunday night, in the neighborhood of half past 11, and the street was quiet; little or no traffic being then upon it. If the car was going at such a speed as some of the plaintiff's witnesses said it was, on an upgrade which was shown to be there, there could have been no possible reason for Kratzmeyer not hearing it coming, if the automobile was going at the speed he said it was, and he was using ordinary care and caution in approaching the tracks. He said he was going 10 or 12 miles an hour, was running within 3 or 4 feet of the north curb on Hamburg street, and that he could stop his car, when going at that speed in a car length, which was about 14 feet. He said there were some holes in Hamburg street, which looked as if they had been putting in water or gas pipes and filled them up with cobblestones, thus leaving depressions, which were about 70 feet from Scott street. This also appears in his evidence:

"As I passed the holes I looked down Scott street and there wasn't anything in sight, when close to the building line, I looked again, and there was nothing in sight, and when I looked around again this thing was right on top of me, and I sheered to my right, going in the same direction he was going, and that quick (indicating) this happened, and that is all I knew until I woke up again. Q. As you approached Scott and Hamburg street before you reached the building line, did you look to either side? A. Yes; I looked before I approached Scott street. My longest vision was that way (indicating), and I looked that way. Q. Which way is that? A. To my left, and that was the longest vision, and as I approached on my right that way (indicating) I looked, and it was clear, and when I went to look to my left again that quick it was on me (indicating). Q. How far below Hamburg street was the electric car when it came into your line of vision? A. I couldn't say. It came so quick I couldn't judge. I looked around again in my right of way, and he was right on top of me then. It all happened in a minute, and I couldn't judge how far it was or where he was at the time. Q. Try to give approximately how far below Hamburg street he was when you first observed him? A. I couldn't say how far below. I judge he was almost across the street, according to that, as I had the right of way to cross the street, and as I looked around as soon as I turned my head there he was, so he must have been pretty near across the street at the time the way I dope it out. As soon as I saw him that quick (indicating) it was over with."

When that is taken in connection with other evidence, it would seem that Kratzmeyer was trying to cross ahead of the car. Without definitely determining that, but assuming for the purposes of this case that he could not recover by reason of his contributory negligence, it still remains to determine how far, if at all, that affects the right of the equitable plaintiffs to recover on account of the death of Miss Hall. In United Rys. & Elec. Co. v. Crain, 123 Md. 332, 91 Atl.

405, Judge Pattison, in speaking for the court, repeated what had been previously held by this court in P. W. & B. R. Co. v. Hogeland, 66 Md. 149, 7 A. 105, 59 Am. Rep. 159, B. & O. R. R. Co. v. State, Use of Strunz, 79 Md. 335, 29 A. 518, 47 Am. St. Rep. 415, and United Rys. Co. v. Biedler, 98 Md. 564, 56 A. 813, that:

"It may be stated as the general rule of the courts of this country, with but few exceptions, that the contributory negligence of a carrier, or of the driver of a public or private vehicle, not owned or controlled by the passenger, and who is himself without fault, will not constitute a bar to the right of the passenger to recover for injuries received. The only principle upon which such contributory negligence could bar the right of recovery is that the driver should be regarded as the agent or servant of the passenger"

-and Judge Pattison added:

"This is undoubtedly the established law of this state, and we have no inclination to depart from it."

In B. & O. R. R. Co. v. McCabe, 133 Md. 219, 104 A. 465, after referring to the above, it is said:

"It is well settled by the above cited cases and others that the negligence of the driver in such cases cannot be imputed to the passenger injured or killed, but it is equally well settled in all such cases that the right to recover for the injury or death of such party is defeated, when it is shown that he has contributed to the accident by his own negligence, and therefore, when there is any evidence tending to show such negligence legally sufficient to go to the jury, it should be submitted to it."

The court went on to say in that case that-

The evidence "was legally sufficient to go to the jury, tending to show contributory negligence on the part of McCabe, but it was not of a character that warranted the court in holding that he was guilty of contributory negligence as a matter of law."

McCabe was sitting on the front seat with the driver, and it was shown that both looked and listened for trains, but heard no whistles or bells. At one point the driver stopped the automobile, and they looked up and down the track, and listened for a train, but they neither saw nor heard any. He then started forward towards the tracks, which were about 30 or 35 feet away. There was a watchman's box near the tracks which obstructed their view, but McCabe did not warn or advise the driver not to cross the tracks without again stopping at a point beyond the watchman's box, where he could have seen the on-coming train.

In the Crain Case the plaintiff testified that just before the accident she heard Mr. Goodman, the driver, tell Mr. Prutz another passenger, that there was a crossing somewhere along there, but just where it was located he did not know. The plaintiff was enjoying the scenery. There were poles 15 or 18 inches in diameter upon each side of the railroad track, at a distance not greater than 110 feet apart, with wires strung...