137 Md. 451 | Md. | 1921
delivered the opinion of the court.
This suit was brought by the appellee to recover for injuries alleged to have been caused by the negligence of the appellant, the Washington, Baltimore & Annapolis. Electric Railroad Company, and the present appeal brings. up for review' the rulings of the court below on the evidence embraced in twenty-two bills, of exception, and its action on threie prayers offered by the plaintiff and nineteen offered by the defendant.
The accident happened about 12 o’clock noon on the 19th of October, 1918, at the intersection of Scott Street and Columbia, Avenue, in Baltimore City, where the double track railroad of the appellant on Scott Street crosses the tracks of the United Railways and Electric Company on Columbia Avenue. Scott Street runs north and south and Columbia Avenue east and west, and the distance from McHenry Street, the second street crossing Scott Street to the north of Columbia Avenue to Columbia Avenue, is about six hundred and twenty-six feet, while the distance from Columbia Avenue to Hamburg Street, which crosses Scott Street to the, south of Columbia Avenue, is eight hundred and six feet. The first street crossing Scott Street north of Columbia Avenue is Ramsay Street, which is about two hundred and seventy-eight feet from Columbia Avenue, and the first street crossing Scott Street south of Columbia Avenue is St. Peter Street, which is about three hundred and ten feet from Columbia Avenue. From McHenry Street, north of Columbia Avenue, to Hamburg Street, south of Columbia Avenue, the tracks of the appellant are practically straight and level, with a slight decline or down-grade from McHenry Street to Columbia Avenue. The cars or trains of the appellant when coming; to Baltimore from Washington, or from intermediate points, which run north on Scott Street, and those going from Baltimore to Washington, or to intermediate points, which run south on Scott 'Street, stop at Columbia Avenue to- discharge and take on passengers. The company erected or
The plaintiff at the time of the accident was thirteen years of age, and, according to his version of what occurred, he received the injuries complained of, which resulted in the amputation of both of his legs, while he was attempting to cross from the southeast to the northwest comer of Columbia Avenue and Scott Street. When asked to state exactly what happened the plaintiff said: “I left the news office on the corner of Columbia Avenue and Scott Street and I walked up to the comer store at Scott Street and Columbia Avenue and as I got to the comer I looked down Scott Street to see if there were any W., B. & A. cars coming up*, and I looked down and I saw one about a square and a half below Columbia Avenue and I started to walk across towards Fagan’s saloon and as I got to the center of the crossing I looked up¡ Stott Street and I seen a W., B. & A. car turn out of McHenry Street into Scott Street and the next thing the W., B. & A. ear came and struck me and knocked me down on
The evidence produced by the defendant gives a very different account of the accident. The motorman of the northbound train testified that both trains reached Columbia Avenue about 12 o’clock, and that the southbound train stopped at the north side, and the northbound train at tbe south side of Columbia Avenue to discharge three passengers; that the southbound train started from Columbia Avenue just, a little before tbe northbound train started; that just- as be started and his motor wasi approaching the intersection at about the speed a man would walk, the plaintiff and several other hoys ran across the street and started to jump on the southbound train; that the plaintiff was behind the other boys and ran right in front of him,; that the moment he saw him he blew his whistle and “threw the air into, emergency” and stopped his train on the intersection, and that as the plaintiff passed
The sixth, ninth, tenth, eleventh, sixteenth, seventeenth and twenty-second exceptions were not pressed in this Court, and the exceptions to the evidence chiefly relied on by the appellant were the first and second, the twelfth, thirteenth and fourteenth, and the eighteenth, nineteenth, twentieth and twenty-first.
Tho plaintiff called as a witness James J. Doyle, the general manager of the appellant, who stated that the appellant did not have a watchman at the corner of Columbia Avenue and Scott Street at the time of the accident or at the time ho was testifying, and the first exception wasi to the action of the court in permitting the plaintiff to ask the witness: "Haven’t you had a watchman there?” The witness replied that during the “evening hours when the race meets are on we have placed a watchman there during the time when the trains are coming in from the race trade.” The second exception was to the further question: “And during the race meets von have had a watchman there since 1914?” To which the witness replied: “For two hours each evening; during tho race period.” * * * “That is, in the evening and not during' the day.” The obvious purpose of the questions was to get from the witness a statement that the company generally had a watchman at the crossing in question so that, the jury might, infer that the company was negligent in failing to have one there at the time of the accident. While no circumstances. had been shown that would impose upon the company the obligation to keep- a watchman at the crossing (North. Cent. Ry. Co. v. Medairy, 86 Md. 168; Cowen v. Dietrick, 101 Md. 46, and Evans v. B. C. & A. Ry. Co., 133 Md. 31), and the questions were not proper, it is apparent that the plaintiff failed in his purpose, for the answers of the witness were to the effect that the company had never had a watchman at the crossing except for about two hours in the evening when the trains were coming from the race
The twelfth, thirteenth and fourteenth exceptions are to the refusal of the court to admit in evidence a record made at the hospital of the various patients, and particularly that part of it containing the “history” of plaintiff’s admission into the hospital, his age, name, complaint, family history, and .what purported to be a statement of how tire accident occurred. Dr. Holland, in his examination in chief, testified to the statement made to him by the plaintiff while he was in the hospital, to which we have already referred, and on cross-examination, presumably with the view of showing, that he was not in a condition to make such a statement, Dr. Holland was asked by counsel for the plaintiff to give the plaintiff’s temperature for1 each day during the first six or seven weeks he was in the hospital. Dr. Holland stated that he could not give it from memoiy, but could do so by referring to the “record,” which contained the “chart” indicating the plaintiff’s temperature on each day. He was told by plaintiff’s counsel to refer to the record, and after doing so and testifying to the temperature, the witness said that the black line on the “chart” immediately above ninety-eight indicated a normal temperature, and counsel for the plaintiff then proposed to show the “chart” to the jury, to> which the defendant objected unless the whole “record” was admitted in evidence, and particularly that part of it containing what we have spoken of as the “history.” The court overruled the objection and permitted the plaintiff to offer the “chart” in evidence without offering the whole record. On re-direct examination of the witness the defendant first
The eighteenth, nineteenth, twentieth and twenty-first exceptions are to the testimony of the witness Frank Fox. William H. Swallenberg, the conductor on the northbound train, testified that the train stopped at the comer of Scott Street and Columbia Avenue to discharge some passengers; that after the passengers left the train, and the train had started, it came to an “emergency stop,” and the motorman called to him to look and see if that boy hanging on the southbound train cleared the motor; that he looked over and saw the boy lying on the east rail of the southbound track and immediately went to him; that while he was with the boy the motorman came to him and told him that they had the Columbia Avenue car of the United Railway Company blocked; that he told the motorman to get on his motor, and the train was then pulled up- to Ramsay Street. On cross-examination he stated in reply to questions by counsel for plaintiff that he did not remember being at the Suburban Club or Hotel Hernán with Miss Campbell, another lady, and Mr. Cbmelius, about two months after the accident, and that he did not state, about two months after the accident, to Miss Campbell, in the presence of the other lady and Mr. Cornelius, at the Suburban, that the first time he knew of the accident was when his train stopped at Ramsay Street. The plaintiff in rebuttal produced Miss Campbell, who testified to the statement made by Mr. Swallenberg at the time and place mentioned. The plaintiff also called Cornelius, who, after he stated that he had never been at the Suburban and did not remember being at the Hotel Hernán with the parties mentioned, was asked if he remembered telling counsel for plaintiff, in the court room, on the Friday previous to his exam
In regard to the other exceptions to the evidence, it is only necessary to say that we have carefully examined them and discover no error in any of the rulings.
This brings us to a consideration of the prayers. The court below granted the three prayers offered by the plaintiff and all of the defendant’s prayers except its second, fourth, fifth, fourteenth, fifteenth, and seventeenth. The objection
In the. case of United Rys. Co. v. Kolken, 114 Md. 160, this Court said: “It is the duty of those in charge of a car to keep a sharp lookout as they approach a street crossing, and to slacken the speed of the car sufficiently to enable them to have it under control, so as to avoid injuring those who may be crossing the street, and the evidence adduced by the plaintiff tended to show not only that the defendant was negligent in the management of its car, but that the motorman saw, or by the exercise of proper care could' have seen, the plaintiff in time to have stopped the car before it struck her. Under such circumstances, it would have been error to have taken the case from the jury upon either of the grounds stated in the first and second prayers, or to have instructed the jury that if they found that the plaintiff was negligent she was not entitled to recover, for even if the plaintiff was guiliy of contributory negligence in attempting, under the circumstances, to cross the street in front of the approaching car, she was still entitled to recover if the motorman could, by the exercise of due care, have avoided the accident, after he saw or, by the exercise of proper care, might have seen the plaintiff as she was about to cross the tracks. This is the
“In McKewerís case, tbe prayer wbicb tbis Court said was ‘quite as favorable to tbe defendant as it bad any right to expect,’ instructed tbe jury that tbe plaintiff was guilty of contributory negligence, and was not entitled to recover, ‘unless tbe jury believe from the evidence that the mctorman of the car in question, after be saw or, by tbe exercise of due care, might have seen that tbe plaintiff was approaching tbe track and was apparently about to cross in front of bis car, and that tbe attempt to do so would be dangerous to tbe plaintiff, might still, by tbe exercise of reasonable care' in tbe management of. said car, have avoided tbe collision, but failed to exercise said care.’ In the case of Consolidated Ry. Co. v. Rifcowitz, supra, tbe defendant offered a prayer instructing tbe jury that tbe plaintiff’s evidence was not satisfactory or legally sufficient to entitle her to recover, and tbe court below granted it after having modified it by adding these words: ‘unless tbe jury shall further find that after tbe motorman saw, or could reasonably have seen, the peril of tbe plaintiff,, he failed to exercise ordinary care to avoid tbe accident.’ In reference to tbis prayer, tbe Court said: ‘The modification wbicb tbe learned judge below made in tbe first prayer of tbe defendant before granting it was an entirely proper one, and was requisite to make it conform to the law governing tbe case. * * '* Mere negligence or want of ordinary care will not disentitle a paintiff to recover if tbe defendant might, by tbe exercise of care on bis part, have avoided the consequence of tbe neglect or carelessness of tbe plaintiff. * * * If tbe court bad not modified tbe prayer, it would have taken from tbe jury tbe question of relative negligence of tbe parties.’ In tbe later case of Consolidated Ry. Co. v. Armstrong, 92 Md. 554, counsel for tbe company insisted that tbe
“Learned counsel for the appellant, while recognizing the rule referred to, contend that it does not apply to the case at bar, because here the plaintiff saw the car as she started across the street. But it can make no difference in the application of the principle whether the plaintiff’s negligence consisted in venturing across the street without looking to see if a ear was coming or in attempting to cross after seeing the approaching car; the rule relates to the duty of the defendant
We have quoted at length from Kolherís case because it ‘clearly points out tbe objections to tbe defendant’s rejected prayers and shows that tbe special exceptions to plaintiff’s prayers were properly overruled. A careful reading of tbe cases of Balto. Consolidated Ry. Co. v. Armstrong 92 Md. 554; Garvick v. United Rys. Co., 101 Md. 239, and State v. W., B. & A. Elec. R. Co., 130 Md. 603, will show that they are not in conflict with Kolherís case, and that they do not support tbe defendant’s rejected prayers under tbe circumstances disclosed by tbe record in this case.
Tbe jury were fully and properly instructed by tbe granted prayers, and as we And no reversible error in any of the rulings excepted to, tbe judgment must be affirmed.
Judgment affirmed, with costs.