Weissman v. Hokamp

• Decision Date: 10 February 1937
• Docket Number: 26.
• Parties: WEISSMAN ET AL. v. HOKAMP.
• Court: Maryland Court of Appeals

189 A. 813

171 Md. 197

WEISSMAN ET AL. v. HOKAMP.

No. 26.

Court of Appeals of Maryland

February 10, 1937

Dissenting opinion.

For majority opinion, see 188 A. 923.

OFFUTT Judge (dissenting).

For the purposes of this memorandum the following facts are conceded by the demurrer prayer in this case and may be assumed Street car tracks run east and west along the middle of Redwood street in Baltimore City. South of the tracks and west of the intersection of that street with Light street several iron pipes set in heavy movable iron bases are used to fence in a narow space next the eastbound car tracks primarily for the protection of persons entering or leaving cars at that point. The arrangement is a common one familar to all travelers on city streets, and the space is usually known and was referred to in this case, even by the police as a "safety zone." A metal disk bearing the legend, "Keep to the Right," was mounted on a standard at one end of the zone. At times that sign would be turned so that its edge would be presented to eastbound traffic and its face to the southern sidewalk of Redwood street; at others its face would be towards eastbound traffic on Redwood street and its edge towards the sidewalks. There is a traffic light at that intersection, and at the time of the accident the sign faced the sidewalk.

On the day of the accident the plaintiff was walking north on Light street. When she reached Redwood, the light was against northbound traffic. She waited a moment and the eastbound traffic cleared. She then walked over to the safety zone and was standing in the pedestrian crossing within a space which would have been bounded by the lines of the safety zone had they extended so far two or three feet from an end rod of the safety zone. Other persons were standing near her, and the policeman on duty there said that he thought the "crowd hid the view of the car and she couldn't see it." While she was in that position, a cab eastbound was driven through the safety zone at from ten to fifteen or eighteen miles an hour, struck and injured her. She testified that when she started towards the safety zone she looked for eastbound traffice but saw none then, that she did not look west after she reached the saftey zone, and that when she was struck she was standing still looking for westbound traffic.

A majority of the court reached the conclusion that these facts, if true, afford no evidence legally sufficient to permit an inference of primary negligence on the part of the driver of the taxicab. Or to put it another way, they reached the conclusion that the act of the driver in driving his cab through a safety zone in which a group of people were standing at the rate of fifteen or eighteen miles an hour in such a way as to strike one of the group was due care as a matter of law. And, if I understand it, the reason for that conclusion is that the traffic light was against northbound traffic, and the "Keep to the Right" sign so arranged as not to be legible to eastbound vehicular traffic. I find myself unable to follow that reasoning.

Obviously the traffic light could not change the character of the fenced-off space, or convert what was in fact a safety zone into what was in fact not a safety zone. The function of the light is to alternately stop and release lines of traffic flowing transversely, so as to give each in turn an opportunity to proceed. It has no connection with safety zones, is wholly independent of them, and the only possible relation between the two is that the safety zone may afford pedestrians who have crossed one half of a street a refuge where they may stop in safety until the changing light permits them to cross the remaining half.

Nor could the mere turning of the "Keep to the Right" sign have that effect. The iron uprights were still there, and the testimony in the record is that they were connected by chains. The sign could have been turned by any one. Ordinarily the police arrange it, but there is no evidence that they did so on the day of the accident. A collision might disarrange it, or persons waiting in the zone could turn it either by accident or design, yet if it is turned, no matter how or why or by whom, the mere fact that it faces the sidewalk instead of the traffic, in the view of the majority, converts what was an instant before a safety zone, into a forbidden space which pedestrians may not enter except at their peril.

But while safety zones are primarily for the safety and convenience of street car patrons, they are also for the safety and convenience of all pedestrians who may have occasion to cross the street where they happen to be located. It may happen that the light will change after a pedestrian leaves the sidewalk releasing traffic against him. In such a case the zone gives him what should be a place of safety where he may remain until the light changes again. Whether he intends to take a street car is wholly irrelevant, because his safety should depend, not upon the ability of the drivers of vehicles approaching the zone to read his mind, but upon the inviolability of the safety zone in which he has taken refuge. For as stated in a California case: "The travelling public has the right to assume that a safety zone or station is what its name implies, namely, a place of safety reserved for those waiting to board or depart from street cars at that point, 'an area or space officially set apart * * * for the exclusive use of pedestrians. * * *' " La Sance v. Casey, 211 Cal. 383, 295 P. 520, 521. In Code, art. 56, § 173 (Ed.1935), a "safety zone" is thus defined: "The term 'safety zone' shall include all parts of the public highways or private rights of way which are elevated above the travelled roadbed, or set apart therefrom for the exclusive use of pedestrians or street car passengers and which are guarded or protected against vehicular travel by posts, plantings, curbing or otherwise, or which are appropriately marked or designated as safety zones by duly constituted State or municipal authorities." He should be entitled to presume that whether the traffic is routed to the right or to the left of the safety zone, in no event will it invade the zone itself, otherwise instead of being a safety zone the space would be a death trap, for after luring travellers into it by its misleading appearance of safety they would be exposed to all the hazards of traffic, without the apparent need for the vigilance they would naturally exercise if they were without the apparent protection of the safety zone.

Moreover in the very nature of things persons operating motor vehicles along city streets must take notice of the obvious and universally known fact that persons are entitled as of right to be in a position where they may leave or board surface railway cars. It may well be that a pedestrian may start for the car tracks from the sidewalks with the traffic light permitting his progress in that direction, but that it will change before or as he reaches...