176 A. 621 | Md. | 1934
On May 7th, 1933, about 1:30 o'clock A.M., the plaintiff, Gladys Goodman, while the guest of Charles E. Newcomer, in the latter's automobile, which he was driving, was seriously and permanently injured when the automobile collided, first on the right, with an automobile driven by the defendant, John R. Rullman, Jr., and then, to the left with a trolley pole of the United Railways Electric Company planted in the center of the North Avenue *661 Bridge in Baltimore City, just eastward of the intersection of McMechen Street and North Avenue.
The suit was brought against the Mayor and City Council of Baltimore, the receivers of the United Railways Electric Company, John R. Rullman, Sr., John R. Rullman, Jr., and Hazel E. Newcomer, administratrix of Charles E. Newcomer, deceased. The plaintiff non prossed as to John R. Rullman, Sr., and the Mayor and City Council of Baltimore, and obtained a judgment against the other defendants, of whom the receivers of the United Railways Electric Company and John R. Rullman, Jr., separately appealed. Mrs. Newcomer did not appeal.
The plaintiff was employed at her father's restaurant at Roland Park as a waitress. Her working hours were from 3:30 o'clock in the afternoon to 1 o'clock in the morning. On the night of the accident, after closing the restaurant, the plaintiff, her brother, Kenneth Goodman, her cousin, James H. Meyers, Adeline Jenkins, and Elmer Ness got into Newcomer's Essex automobile with him. They let Ness out at Chestnut and Thirty-sixth Streets, and the five others drove to the Goodman home on Chestnut Street, stopping just long enough for the plaintiff to go into the house and out again. Someone suggested taking a drive, so the party started for the home of a girl friend of the plaintiff, who lived two blocks away. The friend declined to go along. The party of five then proceeded through Druid Hill Park, coming to North Avenue at Park Avenue, where they turned eastward (left), and thence to the North Avenue Bridge, where the collision occurred, resulting in the death of Newcomer and Kenneth Goodman, and the injury of the plaintiff.
The plaintiff proof of negligence, so far as it affects the defendant Rullman, is substantially contained in her testimony as follows:
"We had an accident or collision on North Avenue Bridge. When we reached McMechen Street I saw a big red truck in front of us, and in back of the truck was a machine, a closed car, closed automobile. We were behind *662 that car. I saw that when we came to McMechen Street. * * * The first time I saw the truck was when I got to McMechen Street. I looked ahead and saw the big truck and this car in back of it, and Mr. Newcomer wanted, I think, to pass the other car, I don't know, and we started gradually to pass this car and we had gotten up to about the middle of the car that was in front of us — I don't know whose it was — and suddenly, without any warning at all, the car in front of us made a quick left turn and we hit it * * * about middle ways. The right hind side of the car I was riding in, the right front wheel and fender hit that car. The next thing I knew I heard a little crash (with the trolley pole on her left) and that's all I know."
"When I first saw the truck in front of the car I was riding in and the automobile that was behind it, the truck was the closest over to the curb. The other automobile was almost directly in back of the truck only a little over to the left. * * * I don't know how fast the car I was riding in was going, but we couldn't have been going very fast. (Meyers said they were going about twenty-five miles an hour and picked up to thirty or thirty-five miles to pass Rullman.) * * * I think we were going faster than the car I saw behind the truck as we came up on the bridge. I did not hear any warning or signal given by the driver of the car I was in before this collision, did not hear any." Asked "what signal you observed or warning before that car turned to the left?" Plaintiff answered, "None. We were riding in the eastbound car track."
There is evidence in the record that Newcomer was intoxicated, but the plaintiff and the other two surviving occupants of the car testified otherwise, so that the question of the plaintiff's contributory negligence in intrusting her safety to a drunken driver becomes a question for the jury.
The testimony of the plaintiff, in which her companions concur, entitled Rullman to have the case against him withdrawn from the jury, as it plainly shows that he violated no duty which he owed to the plaintiff. The uncontradicted *663
evidence is that it was Newcomer's negligence and failure to observe the rules of the road that resulted in the plaintiff's injuries. Hagerstown v. Foltz,
It was not Rullman's duty at that time and place, and under the conditions there existing, to give notice or warning to a car in his rear of his intention to pass a car or truck ahead of him. The rules of the road applicable to the situation in this case are prescribed by the Act of 1929, ch. 224 (Code, Supp. art. 56, sec. 209: "All vehicles * * * when being driven upon the highways of this State shall at all times keep to the right of the center of the highway upon all highways of sufficient width, except upon streets or roads where traffic is permitted to move in one direction only, and except when overtaking and passing another vehicle, and unless it is impracticable to travel on such side of the highway; * * * and any vehicle overtaking another going in the same direction shall *664
pass to the left of the vehicle so overtaken [Elliott on Roadsand Streets (3rd Ed.) sec. 1084], provided the way ahead is clear of approaching traffic and the operator signals the vehicle intended to be passed by the use of his horn or other signalling device." And: "Any vehicle so overtaken shall promptly, upon signal, turn as far as reasonably possible to the right in order to allow free passage on the left." There is no need to cite authorities or decisions as to the proper behavior of Rullman and Newcomer under the circumstances here in evidence. The statute as quoted says what they should have done, and is the authority to be followed. The plaintiff's whole argument against Rullman implies that the accident happened because of his violation of the statutory rule of the road, though the mere violation of a statute or ordinance is not evidence of negligence, unless the violation of the statute or ordinance was the proximate cause of the accident. Kelly v. Huber Buking Co.,
The complaint against the United Railways Electric Company (second amended declaration) is that it maintained a trolley pole, one of a line of seven, in the center of North Avenue Bridge, and that it was an "unreasonable and dangerous obstruction to traffic," and that it was "without any device for signalling or warning the public of the presence and danger of said pole," and that "the said Charles E. Newcomer * * * in attempting to prevent and avoid a collision with the automobile which was then and there carelessly and recklessly driven and operated by the defendant, John R. Rullman, Jr., so carelessly and recklessly operated the automobile in which the plaintiff was a passenger as to cause it to collide with *665 the automobile operated by the defendant, John R. Rullman, Jr., and the trolley pole situated in the center of the bed of North Avenue, at or about a point two hundred feet easterly of the intersection of North Avenue and McMechen Street."
The declaration is built around the opinion in the case ofStern v. International Railway Co.,
The Stern case, supra, in the principles involved, has more in common with the case of Phelps v. Howard County,
The poles in this case were placed where they now are on the North Avenue Bridge, which is the full width of North Avenue, 100 feet, of which 45 1/2 feet are taken for sidewalks and 54 1/2 feet for the driveway. There are two parallel car tracks which take up 17 feet 2 1/2 inches, including a space 6 feet 5 1/2 inches between the tracks. The width of the driveway on which Newcomer was driving, from the south rail of the east-bound track, to the south curb, is 18 feet 7 inches, and between the north rail of the west-bound track and the north curb is 17 feet 8 inches.
By ordinance approved April 8th, 1891, the North Avenue Railroad Company, one of the constituents and predecessors in title of the United Railways Electric Company, was authorized to construct the street railway in evidence, and by that ordinance it was provided: "That it shall be the duty of said North Avenue Railroad Company in making the extension hereby authorized to use iron poles of neat and ornamental design, and whenever the width of the street permits it and as in other respects possible, said poles shall be placed between its two tracks with arms on either side carrying the wires over each track and provided further, that the Mayor and City Commissioner shall determine at what points upon the line of said company said poles shall be placed between the two tracks of said company." It will therefore appear that there was municipal authority for the laying of tracks and placing of center poles, and that the mayor and commissioners were to decide where center poles should be placed, and that, when they made the decision, there was no right of choice in the railroad company. It *668 is not disputed that the Mayor and City Council had authority to grant franchises for the construction, maintenance, and operation of electric railways in and upon the streets of Baltimore, and on such condition as the city should prescribe.
There are seven poles about 110 feet apart on the North Avenue Bridge, the pole here involved being the westernmost, and it is, according to the plat in evidence, about 300 feet from the junction of the northeast end of McMechen Street with North Avenue, and 240 feet from the point where the McMechen Street car tracks join the North Avenue tracks. McMechen Street, a 65-foot street, runs in a northeasterly direction to the south side of North Avenue. Opposite the McMechen Street intersection, North Avenue is intersected on the north side by Lord Street, twenty feet in width, which runs into it in a southeasterly direction. At the junction of the three streets, there are three traffic signals, and the whole neighborhood, which includes the place of the accident, is well lighted. One pole eastward of the one collided with, and about seventy-five feet from the junction with McMechen Street, had been removed about a year before the accident, so that, at the time of the accident, the street was clear of obstructions for about 300 feet from McMechen Street. The poles were about twenty feet high, painted with alternate horizontal black and white stripes to a height of seven feet. There was an abundance of space for three lines of traffic on each side, on a well-lighted, adequately signalled street, a situation which made for the safety of those who drove carefully and within the law, rather than a trap for the unwary.
There was some point made by the plaintiff that there was no record in evidence of the order of the Mayor and Commissioner of the location of the poles, but on the presumption, in the absence of proof to the contrary, that officers of municipal corporations have performed their official duties, we are going to assume that these poles were placed in obedience to the ordinance of 1891.Jones on Evidence (Civil Cases) sec. 46. *669
This case, so far as it concerns the collision with the pole, is predicated on the maintenance of a nuisance by the railway company, done at the instigation and by the order of the Mayor and City Council, which had authority over the streets of Baltimore, and, if one is negligent, then both are negligent, and have been for forty years. As the court so aptly said inHamilton Street Railway v. Weir, 51 Canada Sup. Ct. Reports, 506, 513, we "do not think it competent for a jury to sit in review upon such legislative work twenty years later and to find that such legislative action was an act of negligence." And this court, in Garrett v. Lake Roland R.R. Co.,
It was argued by the plaintiff that the phenomenal increase in travel and traffic since the advent of the automobile had converted what was not an unsafe street forty years ago, when the electric railway with center poles was installed, into a traffic hazard and a nuisance, a theory borrowed from the opinion inStern v. International Railway Co.
There were fifty-eight exceptions taken by one or more of the defendants, of which eleven were to remarks of the court, one of them taking two pages of the record, forty-six on objections to evidence, and one, the last, to the rulings on the prayers, but, as this decision goes to the legal sufficiency of the evidence and the right of recovery against the defendants, it is unnecessary, and would perhaps be gratuitous, for us to discuss the other questions arising in the course of the trial.
There were demurrers to the declaration and all of its amendments, and, as the case was heard on its merits and so presented here, we can assume, without deciding, that the declaration was sufficient, though, as we decide, the facts were not.
Judgment against the appellants in Nos. 46 and 47 reversed,without a new trial, with costs in both appeals.