111 A. 164 | Md. | 1920
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 Nacmi 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 twelve were offered by the defendant, six of which were granted but the first, second, third, third and one-half, sixth and ninth 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 25th, 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 twelve 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 *107 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 out on the step, as he described 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 northbound 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 eleven 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 ten or twelve miles an hour, was running within three or four feet of the north curb on Hamburg Street and *108 that he could stop his car when going at that speed in a car length, which was about fourteen 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 seventy 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 Streets 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 *109
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. InUnited Rwys. Elec. Co. v. Crain,
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 fifteen or eighteen inches in diameter upon each side of the railroad track, at a distance not greater than 110 feet apart, with wires strung upon them, extending for at least half a mile to the westward, which located the railroad and the crossing upon the highway, and they were plainly visible at a point some distance from the crossing, thus pointing out the place of danger of which Goodman had given notice to those in the automobile, including the plaintiff. As the Court said, "it would seem that said poles and wires would have been noticed and observed by the plaintiff in the exercise of ordinary care and caution on her part to avoid the threatened danger, but if they were observed by her she made no mention of them." Yet the Court said that it would not hold as a matter of law she was guilty of contributory negligence, "but nevertheless we think the evidence tending to show a want of due care on her part — which under the circumstances she was bound to take — should have been submitted to the jury." In that case,Brommer v. P.R.R. Co., 179 F. 577, 29 L.R.A. (N.S.) 924, is referred to at some length and was said by JUDGE *111
PATTISON to be "very much like the case at bar." A quotation is made from it which included one from Davis v. Chicago, etc.,R.R. Co., 16 L.R.A. (N.S.) 424, 88 C.C.A. 496, 159 F. 18, which in part was as follows: "It is now the better recognized rule of law that as to such a person, situated as was the plaintiff, riding in a vehicle in mere companionship with his friend, engaged upon a mutual adventure, it is as much his duty as that of the driver to take observation of dangers, and to avoid them, if practicable, by suggestion and protest. In other words, he is required to exercise ordinary care to avoid injury." That is in substance stated in the syllabus of the Crain Case as a decision of this Court, although it is merely a quotation from the Brommer Case. But as will be seen by reference to them, each of the three cases cited in Crain's Case directly after the above quotation was submitted to the jury, and in the note inAnn. Cases 1916 E, 269, referred to below it is said: "Whether the occupant has exercised reasonable care under the circumstances is usually a question for the jury" — citing many cases, including Crain's Case. In United Rwys. Co. v.Biedler,
While there are cases in which the guests or occupants have been held guilty of such contributory negligence as to preclude recovery as matter of law, it will be found by an examination of the numerous cases on the subject that generally the question must be submitted to the jury. There are a great many cases on the general rule and exceptions to it which are cited in the note to Anthony v. Kiefner, Ann. Cas. 1916 E, 269, and in the note to Christopherson's Case,
So although we have reached the conclusion that it cannot properly be said as a matter of law that Maria L. Hall was guilty of contributory negligence, we will now consider it as referred to in the plaintiff's prayers. The first prayer submitted to the jury to find, amongst other things, "that said Kratzmeyer was in exclusive control of said automobile, and that the deceased was not driving said automobile and had no control over the driving or operation thereof," and again that "if the jury further find the deceased was exercising ordinary care and caution as a passenger in said automobile as the same was proceeding along Hamburg Street, approaching and crossing Scott Street, and that when she saw or heard, or by the exercise of ordinary care could have seen or heard the said interurban electric car approaching said intersection of Hamburg and Scott Streets, she could not have stopped said automobile or alighted therefrom before said collision or otherwise avoided said collision by the exercise of ordinary care and prudence on her part, if the jury shall so find, and that she did not contribute to the happening of said collision by the failure on her part to exercise ordinary care and caution." Inasmuch as that prayer specifically referred to Miss Hall not driving the automobile, not having control over it, etc. — thus emphasizing those matters — the jury might well have been misled as to other duties which she was called upon to perform in the exercise of due care, and which were more important to be considered by the jury under the circumstances of this case. Whether or not she used due care in looking for an approaching car and informing the driver of its approach, if she saw one, or could have seen it in time to warn the driver, whether the position she occupied in the car was negligence directly contributing to the accident and whether she should have warned the driver in approaching the crossing, if the jury found that the automobile was running at an excessive speed, were more material under the evidence, yet the *114 prayer only selected such matters as were not involved in much doubt, and specifically referred to them. Merely submitting such matters under the general statements, such as, "or otherwise (could have) avoided such collision by the exercise of ordinary care and prudence on her part," etc., was not enough.
Inasmuch as the jury were instructed that if they found the facts therein stated "their verdict should be for the plaintiff," and the prayer so prominently brought before them the questions referred to but omitted all reference to those which were actually the material facts to be determined in reference to her negligence it was a defective prayer. The only question we have had any doubt about was whether there was reversible error, inasmuch as the Court granted the defendant's seventh prayer, as to whether the deceased exercised ordinary care to ascertain whether or not an electric car was approaching, its eighth, as to whether the automobile was being operated at a rate of speed greater than was reasonble under the circumstances and whether she made objection to it, and protested against the speed, and its tenth as to whether she could, by the exercise of ordinary care and prudence, have seen the car and warned the driver of its approach in time to have prevented the accident, etc. Each of those prayers concluded with an instruction that the verdict of the jury should be for the defendant, if they found the facts set out. We are, of course, aware of the decisions of this and other courts to the effect that it may not be necessary to reverse a judgment by reason of some omission in a prayer of the successful party, if one was granted to the other party covering that question, and there was no danger of the jury being misled. But in this case the plaintiff selected some things which might be evidence of negligence and then omitted all other matters reflecting on that question excepting in so far as they were included in the general and indefinite statements of "exercising ordinary care and caution," "did not contribute to the happenings of said accident by the failure on her part to exercise ordinary care and caution," etc. The defendant's prayers were not mere modifications or qualifications of plaintiff's *115
first prayer, but if the jury found what was submitted in either of them it was entitled to a verdict. Yet the record does not show that the jury's attention was called to those prayers in connection with the granting of the plaintiff's prayer, or that they were in any way specially referred to. When the jury were considering the prayers, as they presumably did, if they took up the plaintiff's prayer and found against the defendant on all the facts specified in it, they were told to render a verdict for the plaintiff. They would not, or at least might not, have understood that in passing on the question of ordinary care they should consider the matters submitted by the defendant's prayers. At best they might have said that the Court has instructed us that if we find these facts we must find for the plaintiff, and if we find these other facts we must find for the defendant, and have become confused as to their duty. It would have been different if the plaintiff's prayer had not specifically pointed out and segregated certain matters reflecting upon the negligence of the deceased. In the case of B. O.R.R. Co. v. Blocher,
But that first prayer and the defendant's fifth were clearly repugnant and contradictory. The only reference in the plaintiff's first prayer to Kratzmeyer's care and caution is: "and that the said Kratzmeyer was driving said automobile at a reasonable rate of speed along Hamburg Street, approaching Scott Street, and that he had said automobile under control," but by the defendant's fifth the jury was instructed, "that if they shall find from the evidence that at the time of the accident mentioned in the testimony the deceased Maria Hall was a passenger in the automobile mentioned in the evidence, then it was the duty of the driver of the automobile to exercise the highest degree of care and skill practicable under all the circumstances for her care and safety, and if the jury shall further find that the driver of the automobile failed to use such care and that his failure to do so was the direct and proximate cause of the accident, without which the accident would not have occurred, if the jury so find, then the verdict of the jury should be for the defendant."
That prayer is precisely like defendant's D prayer in Crain'sCase, which we said should have been granted as offered. The plaintiff's prayer concluded by an instruction that if they found the facts therein stated the verdict of the jury should be for the plaintiff, yet it utterly ignored all questions of negligence of Kratzmeyer, excepting what we have quoted above as to the speed he was running and having the automobile under control, but the defendant's fifth prayer directed the verdict for the defendant if the jury found him negligent as therein stated. There was ample evidence tending to show negligence on his part, which was for the jury to determine. For instance, that of a passenger on the electric car tended to show that Kratzmeyer attempted to run around *117 and in front of the car, and his own evidence furnishes some ground for such an inference. One of the plaintiff's witnesses testified that as he walked down Scott Street towards Hamburg he had seen and heard the car three or four squares off, and two disinterested witnesses standing on the southwest corner of the streets testified that they saw the car coming at a moderate rate of speed and that the automobile was running very rapidly. But the plaintiff's prayer did not submit such questions, either specifically or generally to the jury. There was, therefore, an irreconcilable conflict between those prayers, and under the authorities we cited above, to which may be added 2 Poe, Pl. Pr., Sec. 300, it was reversible error to grant such conflicting prayers.
We deem it proper to add that although we did approve a similar prayer in Crain's Case, and hence the lower Court was justified in granting the fifth prayer, as it was a part of the law of the State, we think that the degree of care imposed on the driver by it is not justified by the facts of this case, and we must say was not in the Crain Case. Miss Hall was not a passenger for hire, but was simply a guest or occupant of the automobile by invitation of the owner. He was not a common carrier, certainly was not on the occasion of the accident, but like most other people he was the owner of the automobile for his own pleasure and purposes so far as the record shows. Such a driver should not be held to "the highest degree of care and skill practicable under all the circumstances" for the care and safety of his guest, and we are not aware of any authority in this State, or any outside of it which would be binding on us that so holds, except the Crain Case. In Huddy on Automobiles, Sec. 113, page 139, it is said: "In considering the rights of a guest we have a different situation presented, although he pays nothing for riding, he is, nevertheless, in the care and custody of the owner or driver of the machine and is entitled to a reasonable degree of care for his safety." There are a great many cases cited in 2 Words and Phrases, 2nd Series, on pages 875-876, as *118 to the signification and meaning of the expression "highest degree of care" but it is not necessary to do more than refer to them. The degree of care required of a driver for the safety of his guest must depend largely upon the circumstances of each particular case, but there is nothing in this record to justify the use of that expression. As defendant's D prayer granted as modified in the Crain Case included that statement as to the care required, as well as the one offered, which we held should have been granted, our attention was not fixed on that but rather as to the effect of the modification. Hereafter when such a prayer is offered it should be so drawn as not to require such a high degree of care, when the injured party was a mere guest or occupant on the invitation of the driver or owner of the automobile, unless under some very peculiar circumstances.
Our understanding of what is meant by the concluding part of the prayer is that if the accident is caused wholly by the negligence of the driver, which was the direct and proximate cause of the accident, which would not have happened except for such negligence or failure of the driver to use proper and reasonable care, then the railway company is not responsible because the accident was not due to its negligence. It is not a question as to whether the negligence of the driver is to be imputed to the guest or occupant, but if the driver caused the accident there could be no reason why a third party should be held responsible for it. The case of Bagwell v. Southern R.Co.,
Then there was no reference made in any of the plaintiff's prayers as to whether Naomi Hall was a legitimate child of Maria Hall, or to the effect of it, if she was not. The only evidence on the subject of the marriage of Maria was that of her mother and of Jockell. She was asked, "When was your *119
daughter married?" and replied, "I couldn't tell you that. I know she went off and told me that she had got married." In another place she said she was away from home a day and night, and told her that she had married George Kelly. Jockell, one of the plaintiff's witnesses, said she was unmarried. She and Kelly never lived together, and she went by the name of Miss Hall. Her declaration that she was married was admissible under Craufurd
v. Blackburn,
Without discussing them we find no reversible error in the other exceptions, but must reverse the judgment for the reasons stated.
Judgment reversed and new trial awarded, Amelia Hall, anequitable plaintiff and next friend of the infant, to pay thecosts. *122