59 A.2d 313 | Md. | 1948
This suit was instituted by Alberta Eisenhower against Sun Cab Company, Inc. and The Baltimore Transit Company to recover for personal injuries which she sustained when a taxicab, owned by Sun Cab Company, Inc. and driven by one Metcalf, in which she was riding as a passenger for hire, was struck by a street car of The Baltimore Transit Company, operated by one Keller. The jury in the Superior Court of Baltimore City rendered a verdict in her favor against both defendants in the amount of $5000.00. Sun Cab Company, Inc. filed a motion for a new trial which was granted. The motion of Baltimore Transit Company was for a judgment n.o.v., or in the alternative, for a new trial. Acting under the authority given by Rule 8, Part III, subd. 3, Trials, of the General Rules of Practice and Procedure, *531 1945, the Court directed the entry of a judgment n.o.v. for costs in favor of the defendant, The Baltimore Transit Company, without ruling upon its motion for a new trial. The plaintiff has appealed from this judgment.
The accident occurred about one o'clock in the afternoon of July 5, 1946, at a five street intersection in Baltimore. The streets here intersecting are Eutaw Street, Madison Street, Hamilton Terrace, Madison Avenue and St. Mary's Street. Eutaw Street runs north and south and in the block immediately north of the intersection it is called Hamilton Terrace. Madison Street runs east and west and its western terminus is at the intersection. Madison Avenue begins at the intersection and runs therefrom in a northwesterly direction. St. Mary's Street is a narrow street which runs into the intersection from the southwest and ends there. There are double street car tracks on Eutaw Street and Madison Avenue, curving from one street into the other. There is one traffic signal at the location which controls the movement of traffic on all five of the streets entering the intersection. It is on a pylon in the bed of Eutaw Street about 14 feet east of the east rail of the northbound car track and about 60 feet north of the south curb line of Madison Street. The north curb line of Madison Street does not extend in a straight line to Eutaw Street, but turns to the northwest about 70 feet from Eutaw Street and is then, in effect, a prolongation of the northeast curb line of Madison Avenue. The width of Madison Street, between curbs, is 40.3 feet, so that the pylon stands about 20 feet north of a westerly prolongation of the north curb of Madison Street. There are two supplementary traffic lights, one at the corner of St. Mary's and Eutaw Streets, and the other at the corner of St. Mary's Street and Madison Avenue, but the manner of their operation is not material in the instant case.
It is stipulated in the record that when the light on the pylon showed green for southbound traffic on Hamilton Terrace it showed red for all other traffic; that *532 when it showed green for northbound traffic on Eutaw Street, it showed red for southbound traffic on Hamilton Terrace; that the amber light showed only at the end of the green light; that the light changed from red to green without the intervening amber; and that the amber light showed for the final three seconds of the green light and that for said final three seconds both the amber and green light showed together. It is further stipulated that the weather was clear and the streets were dry. The taxicab was southbound on Hamilton Terrace and the street car was northbound on Eutaw Street.
The Court, in deciding whether to grant demurrer prayers or motions for judgments n.o.v. resolves all conflicts in the evidence of the plaintiff and assumes the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right of recovery. Armiger v. Baltimore Transit Co.,
In the instant case there is no question of the contributory negligence of the plaintiff. The question is as to the primary negligence of the defendant, The Baltimore Transit Company. This is not a case where the mere happening of the accident raises any presumption of negligence on the part of the defendant, but the burden is upon the plaintiff to show negligence. Speculation as to how or from what cause the accident occurred cannot be allowed to stand for proof. There must be evidence upon which the jury can reasonably and properly conclude that the injury was produced by some negligence or wrongful act of the defendant. Barker v.Whittier,
The acts of negligence charged against this defendant are that its agent disregarded and went through a red light at said intersection, operated the street car at a high and improper rate of speed, failed to keep a proper lookout and failed to have the street car under proper control. All the evidence relating to the happening of the accident was produced by the plaintiff. In addition to her own testimony, there was offered the testimony of Keller, the operator of the street car, and of Metcalf, the driver of the taxicab. The evidence of the motorman, Keller, which was undisputed, was to the effect that he was operating the street car at a proper rate of speed, between 10 and 15 miles per hour, that he was keeping a proper lookout and "had noticed the cab sitting over on Hamilton Terrace", and that he had the street car under proper control. Therefore, if there was any act of negligence imputable to this defendant, it must have been that the motorman entered the intersection on a red light.
The motor vehicle laws of the State are now codified as Article 66 1/2 of the Annotated Code, 1947 Cumulative Supplement. Section 141 of said Article deals with traffic control signals and provides under subsection (a) when the signal is green alone or "Go", "(1) Vehicles facing *534
the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. All vehicles shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection at the time such signal is exhibited." It is further provided by subsection (e) of Section 141 that "the operator of any street car or trackless trolley shall obey the above signals as applicable to vehicles." In discussing the said provisions in the case of Caryl v.Baltimore Transit Co.,
Let us now examine the evidence in the light of these authorities. The plaintiff's testimony on direct examination was as follows: "As we were going down I was looking from one side to the other. I was looking straight ahead, and at the time I did look at the light it was green, and at that time we were just about a car and a half, or a little more, past the curb, and then the next thing I know I saw the street car and the cab driver tried to pull on his brakes to stop, and he had stopped and they both had come together." On cross examination she stated that the taxicab stopped on Hamilton Terrace at its intersection with Madison Avenue; that it then proceeded into the intersection and that when it was about a car and a half beyond the curb line, she first noticed the green light; that the first time she saw the street car was "right before it came into us"; and that she did not know when the light turned green or where the street car was at that time.
The testimony of the motorman, Keller, was as follows: "As I arrived at the intersection the light was green. Nobody got on or got off the car, so I proceeded across, slowing up for the curve. I had noticed the cab sitting over on Hamilton Terrace. As I got ten or twelve feet from the cab, the cab proceeded to move. I threw my car into emergency and did everything in my power to stop it." He further testified that he looked at the light, that the light was green when he started into the intersection and that it was still green the last time he saw it, which was when he was just a few feet from the pylon. He stated on redirect examination that when he saw the cab standing on Hamilton Terrace he had already passed the pylon.
There is nothing in the plaintiff's own testimony or in the testimony of Keller from which the inference *536 can be drawn that the street car entered the intersection on a red light. On the contrary, if this were the only evidence in the case, the only logical inference would be that the street car was proceeding lawfully into and through the intersection. But we must still consider the testimony of Metcalf, the driver of the taxicab, also called as a witness by the plaintiff.
We will quote at length from Metcalf's testimony. On direct examination he gave the following testimony: "I was headed south on Hamilton Terrace. As I approached the light at Eutaw and Madison, the light turned red, so I stopped. I stopped at the building line, and of course, I was watching for the light to change green.
"Q. Now, how far is that building line from the street car tracks? A. I would say around 25 feet.
"Q. Go ahead. A. Before the light had changed I noticed a street car pull up to the corner, whether it discharged or took on passengers, I can't say, and then the next point the light turned green. Of course, I started out. The next I seen the street car was about even with the traffic light, so I applied my brakes and stopped. Of course, the right front of his car hit the right front fender and bumper of my car.
"Q. Now, when you started your taxicab after the red light, are you sure that the light was green in your favor? A. Positive."
Under cross-examination by defendant's counsel this witness gave the following testimony:
"Q. Now, where was the street car when you first saw it? A. When I first saw the street car it was at the other intersection taking on or leaving off passengers, I wouldn't say which. I don't know.
"Q. Was that while you were stopped? A. Yes sir.
"Q. Now, where was the street car when you started? A. When I started and the light was green the street car was about even with the light.
"Q. Was the street car moving then? A. Yes, sir.
"Q. Well now, Mr. Metcalf, if you saw the street car at the light and moving towards you, why did you start? *537 A. I had started. The light was green. I had started immediately when I seen the street car stopped.
"Q. Now, where was the street car when you started? A. I would say about with the light."
During further questioning by defendant's counsel the witness variously testified that the street car was back at the corner to take on or leave off passengers when he started his taxicab; that when he applied the brakes to the taxicab, the street car was at the light; and that the first time he saw the street car moving towards him it was at the light.
During his cross-examination by counsel for Sun Cab Company, Inc., he gave the following testimony:
"Q. When the traffic light that you have indicated as being in the bed of Madison Street turned green, was it then that you started your taxicab? A. Yes, sir.
"Q. Now then or at the time that you first started your taxicab, that is right at the time or just before, did you see the street car? A. Yes, sir.
"Q. Where was the street car then? A. Just about with the light.
"Q. Do you mean — A. The front of the street car was about with the light."
We have quoted the testimony of this witness at such length so that we might properly evaluate its probative force. The various statements of the witness as to the position of the street car at the time the light turned green in the witness' favor are clearly contradictory. It was said in the case of Slacum v. Jolley,
There is one other question for our consideration. During the direct examination of Keller, plaintiff's counsel attempted to ask him about his conviction in the traffic court for some violation of the traffic law growing out of this accident. Upon objection the Court refused to allow the question to be answered. The sole object of this question was to discredit the plaintiff's own witness. It is a general rule of law, founded on reason and good sense, and to effect the ends of justice, that a party cannot discredit his own witness or show his incompetency.Franklin Bank v. Steam Nav. Co., 11 Gill J. 28, 33 Am. Dec. 687. There is another general rule that the judgment in a criminal prosecution is not competent evidence, to establish the truth of the facts upon which it has been rendered, in a civil action for damages occasioned by the offense of which the party stands convicted. General Exchange Insurance Corp. v. Sherby,
Finding no error in the rulings of the trial court, the judgment will be affirmed.
Judgment affirmed, with costs. *539