| Md. | Apr 8, 1926
Lead Opinion
The Emerson Morgan Coal Company, Inc., was, on April 24th, 1924, engaged in the business of selling and delivering coal in the City of Baltimore. Shortly before two o'clock in the afternoon of that day, one of its trucks, loaded with two and one-half tons of coal, backed up at a right angle to the curb in front of 324 on the west side of North Monroe Street in that city for the purpose of delivering the coal into the cellar of that house. The truck was furnished with a chute and a hoisting mechanism, which were used to unload it. In unloading the truck, the chute, which was a steel trough, was attached to the rear end of the truck body, and extended through a window into the cellar of the house. The truck body with its load of coal was then elevated by the hoisting mechanism so that the floor of the truck and the chute formed a continuous plane inclined at such an angle that the coal would slide by gravity from the truck body into the chute and through it into the cellar. At the time the accident which is the basis of this suit happened, the chute had been adjusted, and the body of the truck elevated, and two of the appellee's employees were engaged in unloading the coal. One of them stood at the rear of the truck controlling the volume of the flow of coal by manipulating the flood gate, and the other had his head in the cellar window, directing the course of the flow of the coal running through the chute into the cellar.
The truck itself extended east across a part of the southbound car tracks on Monroe street, so that the truck and the chute together formed an obstruction across the entire sidewalk on the west side of Monroe street, the space between the sidewalk and the car tracks, and a part of the southbound car track.
Whilst the truck was in that position, Mrs. Joseph M. Thompson, wheeling a baby carriage, going north on Monroe street, approached and attempted to cross under the chute. She had pushed the carriage under it and was in the act of going under it herself, when it collapsed, striking her, crushing *435 her to the pavement and inflicting injuries from which she died a short time afterwards.
She left to survive her a husband and four children, aged from ten months to twelve years, and on June 21st, 1924, this suit was brought in the name of the State for their use to recover for the loss which they claim to have suffered as a result of her death, which they say was occasioned by the defendant's negligence. The case was tried before the court and a jury in the Superior Court of Baltimore City, and the verdict and judgment at that trial being for the defendant, the plaintiffs appealed.
The record contains eighteen bills of exception, which were signed on the 30th of December, 1925. The judgment was entered on August 25, 1925, and on December 7th, 1925, the court signed an order extending the time for signing the several bills of exception to January 8th, 1926, and for submitting the exceptions to appellee's attorneys to December 18th, 1925. The appellee now moves to dismiss the appeal on the ground that the bills were not submitted to its counsel until December 18th, 1925, although under the statute they should have been submitted to them not later than December 5th, 1925, and upon the further ground that the record was not paid for within the time prescribed by the rules of this court. When the bills were submitted to the attorneys for the appellee, they suggested certain changes, which appear to have been made before the bills were actually signed and filed, so that it suffered no injury through the failure of the appellants to submit the exceptions for their inspection within the time required by the statute (chapter 338, Acts 1924). These points were not pressed at the argument of the case, and in regard to them it is sufficient to say (1) that, the first point is concluded by the case of Wegefarth v. Weissner,
Seventeen of the eighteen exceptions relate to rulings of the trial court upon questions of evidence, and the eighteenth to its rulings on the prayers and the exceptions thereto. Before attempting to deal with these exceptions seriatim, we will refer briefly and generally to the effect of the evidence relating to them.
It is not clear that the appellant had any definite theory as to the cause of the accident. Its witnesses could not or at least they did not express any opinion upon that point. George P. Black, a police officer, in describing the hoisting mechanism, said that the cart, while it was elevated by means of the hoisting mechanism, was suspended from chains, one end of which was attached to an "eyelet" in the top of a steel upright on either side of the truck and the other to the bottom of the truck; that one of these eyelets looked "old and worn," and that it was worn down so that the chain pulled through it and was hanging down, but he did not say or intimate that the accident was caused by that condition of the eyelet, and in the absence of any satisfactory description of the hoisting mechanism it is impossible for us to say that the condition of the eyelet described by the witness had anything to do with the accident. The same witness further said that there was no broken link in the chain, but that the eyelet was "broken." August P.W. Desor said that he saw one of the men with the truck take from it what looked like a broken chain. Officer Claude E. Long testified that he saw the truck shortly after the accident, and that he found that the "eye" on the upright on the right side of the truck was worn and broken, so that the chain pulled through, but that the chain itself was not broken, that he did not know why the truck body fell, but "judged" that it was because the chain pulled through the eyelet. There was other testimony offered by the appellant tending to show that just before the accident and before it had been elevated *438 the rear end of the truck was about four or five feet from the ground at the curb, and that after the chute fell Mrs. Thompson was found under it partly covered with coal, and that the baby had been thrown from its carriage, which was overturned when Mrs. Thompson, who was pushing it, was struck and fell. The effect of this testimony is that, as Mrs. Thompson was passing under the chute, for some cause not clearly shown by the testimony, it fell on her and caused the injuries from which she died.
The defendant on the other hand has a definite theory of the accident. It contended that the fall of the chute was due to a defective link in the hoisting chain on the left side of the body of the truck; that as a result of the defect the chain broke or pulled apart; that the link was little worn, and that the defect which caused it to break was latent, that a part of the broken link was found at the scene of the accident, and that it showed that it had broken at a point where it had been welded. And it offered testimony tending to support these contentions, and also to show that its trucks were inspected daily to see if the mechanism operated properly. It further appeared from the defendant's testimony that the rear end of the truck when fully elevated was seven and a half feet above the sidewalk.
There was some conflict in the testimony as to the height of the chute above the sidewalk at the point where Mrs. Thompson attempted to cross under it. Dorsey, the driver, said that she had to stoop so that she could have picked up a pin from the pavement, but he also testified that the rear end of the truck was elevated about seven feet above the pavement. The same witness also testified that he had said to Mrs. Thompson when she was about twelve feet from the chute, "Lady, please don't go under this chute," and he repeated the warning when she continued to approach, but that she ignored it and was crossing under it when it fell.
From this statement of the evidence it is apparent that the plaintiff's right to recover rests upon the doctrine of res ipsaloquitur, and that the defences are (1) that there was no *439 evidence legally sufficient to show primary negligence on the part of the defendant, and (2) if there was, nevertheless the negligence of Mrs. Thompson so far contributed to the happening of the accident complained of that the plaintiff cannot recover in this case. And we will now consider the exceptions in connection with those contentions.
George P. Black was asked to what extent general vehicular traffic ran on Monroe street "past" the 300 block. The court refused to permit the question and that ruling is the subject of the first exception. When that ruling was made there was no evidence in the case which showed that the sidewalk on which Mrs. Thompson was traveling when she was injured was obstructed, and in the absence of any offer on the part of the plaintiff to show that fact, we find no error in this ruling.
Later the same witness was asked this question: "Now, as you have seen these trucks delivering coal in that way through the projected chutes from the bodies of the carts into the windows of residences, what habitually, according to your observation, has been the course of people walking along the sidewalk?" To which the defendant objected. The court sustained the objection and that ruling is the subject of the second exception. We will assume from a colloquy between court and counsel immediately preceding it that the question was designed to show that it was a general custom of travellers on the streets of Baltimore City to walk under coal chutes when they were extended across the sidewalks of such streets. Assuming as we do that it was in proper form to elicit testimony to that effect, under the decisions of this court it should have been permitted, not so much as reflecting upon the negligence of the plaintiff as upon the negligence of the defendant. For if the defendant knew that travellers, using the sidewalks of the city streets, usually or frequently crossed under the chutes obstructing and extended above the sidewalks from its wagons or carts unloading coal to the houses into which the coal was delivered by means of the chute, it became incumbent upon it to exercise at least ordinary *440
care to see that persons so crossing under such chutes were not injured thereby. Monroe street was a public highway, and throughout its whole extent from end to end and from side to side was dedicated to public uses. Under the general rule, the right of the public to free and unobstructed passageway over every part of it was paramount to all other rights except such as are reasonably necessary to effect the purposes for which the street exists. Those purposes were twofold; first, to afford a safe and convenient way for the passage of the general public, and, second, to afford to persons abutting thereon ingress and egress to and from their properties. The right of ingress and egress includes necessarily the privilege of receiving such supplies and materials, including fuel, as are necessary or convenient for the comfortable enjoyment of the abutting properties, and, as incident thereto, the privilege of temporarily obstructing the street and sidewalk for that purpose. But the right to obstruct the highway, even for such purpose, is limited and subordinate to the paramount right of the public to free and safe passage thereover. And if the obstruction is unnecessary, or if it subjects persons in the lawful use of the street to unnecessary dangers, or if it is maintained for an unreasonable length of time, it cannot be justified under the exception to which we have referred. These general principles have been long established, although there may have been some confusion in their application to the facts involved in the cases in which they have been considered. This Court in Brauer v. Balto. Refrigerating Co.,
Mrs. Alice V. Cook, who was in the vestibule of her home, No. 310 N. Monroe street, and Mrs. Elizabeth Edwards, who was standing on the steps of her home, No. 318 N. Monroe street, were asked on behalf of the plaintiff whether they could have heard "if any one had called out" three doors and seven doors away, respectively. These questions were objected to and the objection sustained, and those rulings are the subject of the fourth and fifth exceptions. It appeared from the testimony preceding these questions that the houses in that block were about thirteen or fourteen feet wide, and that coal was at the time running through the chute. One objection to these questions is that when they were asked there was no testimony that any one had called or given any warning, and the questions were premature, but aside from that they were obviously objectionable, because they did not require the witnesses to testify to facts, but to give an opinion upon an incomplete hypothesis. Whether they could have heard a call given at No. 324 Monroe Street must have depended upon how loud the call was, and yet the question did not require them to consider that fact at all.
Mrs. Bertha Jentner, a witness for the defendant, was asked whether she had not heard Mary Boyer, a witness for the plaintiff, say at a stated time and place that she had heard some one give a warning just before the accident happened. The court permitted the questions over plaintiff's objection, and these rulings are the subject of the sixth and seventh exceptions. There was no proper foundation for these questions, but as the evidence elicited by them was afterwards stricken out, the appellant was not injured by those rulings, and they are free from reversible error.
There is no point in the eighth exception. A witness for the defendant was handed what he was told was a part of a link from the chain, the breaking of which, the defendant claimed, caused the accident, and examined as to it. On cross-examination he was asked where the other part of the *444 link was, "the worn part, that part that broke off and gave away," which the court refused to permit. This question was of course objectionable because it improperly assumed facts, but aside from that the witness subsequently testified that he had never seen the other part and did not know where it was.
The ninth and tenth exceptions were taken to the admission of evidence to the effect that the truck in question had been overhauled and placed in "good condition" a couple of weeks before the accident. This evidence was relevant under the issues in the case and was properly admitted. Exceptions twelve to fifteen, inclusive, relate to the admission of testimony given by Edward M. Leonhardt, and explaining why the link offered in evidence "broke," and to what extent the missing part of the link had worn away. Leonhardt, who was offered as an expert witness, first testified that he was engaged in the business of manufacturing wagons, wagon bodies, automobile bodies and coal bodies, and that his company installed hoisting devices on coal bodies, and that it had installed the body on the truck which injured Mrs. Thompson; that he did not personally inspect the truck before it was delivered; that the chains used in the hoisting device were bought from the West Shore Chain Company, by which they were tested, although he had no personal knowledge of the tests; that although he was a woodworker he had had a "lifetime's" experience with chains. He was then handed the link and asked if he could tell why it broke, and he replied "No, I cannot tell you what caused it to break. I have a theory why it broke from the appearance of the link, but I cannot tell definitely. He was then allowed to give that "theory," which was that the "link where the chain was forged has given away." The witness gave no reasons for his conclusion and, in view of his own statement, it was largely conjecture and should not have been admitted, but it is not apparent that the appellant could possibly have been injured by his answer. The same witness was then asked to tell from an examination of the part of the link in his *445 possession how much the end of it, and the end of the missing part, had worn, and he answered "one thirty-second of an inch." In view of the experience and qualifications of the witness these questions, which were the subject of the fourteenth and fifteenth exceptions, were properly allowed.
Officer Claude E. Long, called for the plaintiff, testified in chief that he had inspected the coal truck which caused the accident shortly after it had occurred. Witnesses for the defendant testified that he had not examined it. In rebuttal, the plaintiff again asked the witness if he had inspected the truck, but the court refused to allow the question, and in that ruling, the subject of the sixteenth exception, we concur. Nor do we discover any error in the ruling involved in the seventeenth exception, which was taken to the action of the court in permitting the defendant to ask, in the cross-examination of this witness when called in rebuttal, this question: "Now, you have stated in your report that you said that the lifting gear had broken. Didn't you say at the coroner's inquest that the colored driver told you that?" The matter was within the sound discretion of the court, and the record discloses no abuse of that discretion. The third and eleventh exceptions were not pressed in this court and need not be considered.
This brings us to the eighteenth exception, which deals with the rulings of the court on the prayers.
The plaintiff offered three prayers, of which the court granted the third, designated in the record as the "second," refused the second, called in record "1-A," and refused the first as offered, but granted it with a modification. The defendant offered twelve prayers, of which its "A," "B," fourth, fifth, eighth and tenth were refused, and the others except the third were granted as offered, and the third was modified and granted.
By its first prayer as offered, the plaintiff's right to recover was made to depend upon whether the accident was caused by a defect in the eyelet referred to in the evidence, or in the link of the chain offered in evidence, while as a *446
result of the court's modification, it was not allowed to recover even though the jury found that the accident was caused by either of such defects, unless they further found that the defendant in the exercise of reasonable care and diligence should have discovered them (inferentially) in time to have avoided the accident. This prayer in our opinion as offered did not correctly state the law applicable to the case. The defendant was not an absolute insurer of the safety of its appliances. It was not engaged in an unlawful or a wrongful act. It was only held to the exercise of ordinary and reasonable care, considered in connection with the nature and character of the instrumentality employed by it, to avoid injuring others also in the lawful use of the highway, and its liability must have rested upon its failure to use such care. If no ordinary care or reasonable diligence could have discovered the defects referred to in the prayer, the plaintiff was not entitled to recover for injuries resulting therefrom, yet under that prayer, as soon as it appeared from the evidence that the accident was caused by the defective eyelet or the defective link, the defendant's liability would have become fixed, even though the jury believed that no degree of care or diligence could have discovered the defect. That certainly is not the law, and none of the cases cited by the appellant supports that proposition. It will be noticed that in this prayer the plaintiff predicates its right to recover not upon the mere unexplained fall of the chute, but upon certain specified defects in the hoisting device of the truck to which it was attached, and such cases as Pindell v. Rubenstein,
The plaintiff's second prayer was properly refused. It sought to have the court rule that the defendant had adduced "no evidence" to show that it had adopted and enforced adequate rules for the inspection of the hoisting machinery of its trucks. It has been repeatedly held that a prayer in this form is too general and presents no question which this court can consider, but as the case must be remanded, it may be added that there was in the case legally sufficient evidence from which it could have been inferred that the defendant maintained a system of inspection, and whether that system was adequate was a question for the jury. The cases of Md., Del. Va. R. Co. v. Brown,
The plaintiff's objection to the defendant's third prayer goes rather to the weight of the evidence upon which it is predicated than to the legal proposition which it presents. By it the jury were told that if Mrs. Thompson was warned not to pass under the chute by Dorsey in the words and in the manner described in his testimony, and that she heard the words and understood them to be a warning of danger, but in spite of the warning passed under the chute, the verdict should be for defendant. As the case is to be retried, and since it would serve no useful purpose, we will not refer in detail to the evidence upon which this prayer is based, but it is sufficient to say that there is in the record evidence legally sufficient to support it, and that the proposition of law involved in it is sound.
There was, however, error in granting the defendant's sixth prayer, by which the jury were told "that the mere happening of the accident complained of raised no presumption of negligence on the part of the defendant." Such an instruction in a case of this character is misleading and improper, because where an accident is caused by the operation of some instrumentality in the exclusive control of the defendant for which no explanation can be offered by the plaintiff, under circumstances which involve a breach of a duty on the part of the defendant to avoid injuring the plaintiff through the operation of such instrumentality, a presumption of negligence does arise from the mere happening of the accident. Clough Malloy v. Shilling,
The defendant's seventh prayer presented the proposition *450 that if the defendant exercised reasonable and ordinary care in purchasing, maintaining and inspecting the coal truck and hoisting machinery attached thereto described in the evidence, and that the accident was due to the breaking of a link in a chain as a result of a latent defect therein which the defendant could not by the exercise of ordinary care have discovered, that the plaintiff could not recover. It is contended (1) that there is in the case "no evidence" that the defendant adopted any "system of rules" for the inspection of its trucks, and (2) that for that reason it was negligent. What we have said in reference to the plaintiff's 1-A prayer is also applicable to this prayer. But it may be added that, even if the special exceptions raised the point, there is in the record evidence legally sufficient to support the hypothesis of the prayer, and that the legal proposition which it submits is free from criticism. The jury could have inferred from the evidence that the truck had been inspected, and whether the inspection was adequate was a matter for them to determine, and if they found that the inspection had been adequate and careful, there is no reason why they should infer negligence from the mere fact that the defendant had no definite fixed and certain rules governing such inspection, although they could have considered that fact in determining whether the inspection had been adequate.
No objection was urged in this court to the remaining prayers granted at the instance of the defendant, and after a careful examination of them we have been able to discover none, and in our opinion they were properly granted, nor have we found any error in the court's rulings on the special exceptions to the defendant's prayers.
From what has been said it is apparent that the judgment appealed from must be reversed and a new trial awarded, if there is any evidence in the case legally sufficient to entitle the plaintiff to recover, and, if the plaintiff is not barred by contributory negligence on the part of the deceased. Upon the first point it is unnecessary to add anything to what has been said, and in our opinion there is enough in the evidence *451
tending to support the plaintiff's case to take it to the jury. Nor do we find that Mrs. Thompson was guilty of contributory negligence as a matter of law. It is true Dorsey testified he said to her, "Lady, please don't go under the chute," but assuming that that was a warning of danger, and whether it was or not was a question for the jury, she may not have heard it or known that Dorsey was addressing her. There must have been some noise from the coal running through the steel chute, and while his co-employee with his head through the cellar window said he heard Dorsey call, a woman standing on her steps three doors away did not hear him. And in the absence of any clear and definite warning of danger, we cannot say that her act in crossing under the chute was so prominent and decisive in its character as to furnish conclusive evidence of contributory negligence. Waltringv. James,
For errors committed in granting the defendant's sixth prayer, and in refusing to permit the question involved in the second exception, the judgment appealed from will be reversed and the case remanded for a new trial.
Judgment reversed and case remanded for a new trial, withcosts to the appellant.
Dissenting Opinion
Assuming that the rulings objected to were erroneous, I am of opinion that those errors do not justify ordering the case to be tried again. *452