United Rwys. Elec. Co. v. Dean , 117 Md. 686 ( 1912 )

The principles of law controlling this class of negligence case are well established by a number of decisions of this and other State Courts. The chief difficulty consists in a proper application of them to the state of facts presented on the record in each case.

The plaintiff brought this suit in the Circuit Court for Baltimore County on the 16th day of January, 1911, against the defendant, the United Railways and Electric Company, to recover damages for personal injuries received by him while a passenger on the railway, on its route from Baltimore City to Towson, in Baltimore county.

On the 15th day of April, 1911, the case was removed to the Circuit Court for Carroll County for trial, and from a judgment entered in that Court, in favor of the plaintiff, for the sum of $1,800.00 and costs, the defendant has appealed.

The rulings of the Court below, upon the defendant's demurrer to the declaration; the overruling of its motion for a rule for bill of particulars and its exception to the action of the Court in dismissing the defendant's petition for payment of costs of the former trial (where the plaintiff submitted to a non-pros, before suit in this case, the cause of action being the same in both cases), were waived in this Court and are not pressed, in the argument in the brief.

The questions for our consideration on the record now before us, arise upon twenty-four bills of exceptions, reserved by the defendant, during the trial of the case, on rulings of the Court upon the evidence and the prayers. Twenty-two of these present rulings of the Court upon the evidence. The first, fourth, fifth, seventeenth, nineteenth and twentieth were abandoned at the hearing and are not discussed by the appellant in its brief. The twenty-third and twenty-fourth exceptions relate to the Court's rulings on the prayers.

At the trial of the case, the plaintiff presented four prayers, all of which were granted. The defendant offered sixteen prayers, and of these the second, third, fourth, fifth, sixth, seventh and fifteenth were granted. The twelfth was granted, as modified, but the defendant's first, eighth, ninth, tenth, eleventh, thirteenth, fourteenth and sixteenth prayers were rejected.

The rulings of the Court in granting the plaintiff's prayers, the modification of the defendant's twelfth prayer and the rejection of eight of the defendant's prayers form the basis of the twenty-fourth exception.

The facts set out in the record before us and on which the rulings of the Court below are based, briefly stated, are these: The defendant is a corporation and operates an electric railway in Baltimore City and Baltimore County. The plaintiff is a resident of Harford county, and on the 10th of July, 1910, was a passenger of the defendant company from Baltimore to Towson. He left Baltimore City to return to his home in Bel Air, Harford county, at 9 o'clock on the night of the accident and took a car at Ranier avenue and 10th street, and transferred to the York Road car to Towson, and from there he took the train to Bel Air. The car upon which the appellee was riding was derailed, as it approached the overhead bridge crossing of the Maryland and Pennsylvania Railroad near Susquehanna avenue, Towson, it jumped the track and struck a telegraph pole and pile of lumber.

The plaintiff testified at the time of the accident he was sitting about the center of the car on its right-hand side, and remained in the same position during the entire transit. "I was sitting with my foot up on the side rail; there is a little projection out; I had my foot up on that. They had small transverse seats which seat two like a steam car has; going out from Govanstown to Towson, the car was traveling at a very high rate of speed. I suppose there were ten people on the car, which was traveling very fast; you could see by the side, you could tell by the feel of it. When it was going through the curve (reverse curve) and over the switches the car started to wabble, and it never straightened up any more until it jumped the track. They never slackened up for the curve at all. When it went through the curve it shook the people in the car. When the car left the track it threw me forward and jammed my knee between the seat there and the window. My leg was jammed in between the two. It was jammed in there as far as it would go; it was jammed in there pretty tight, and it remained in there until the car struck the telephone pole or a pile of lumber. It threw my body forward and my head and shoulder against the seat in front of me; then it jerked my leg out and I fell to the floor; the first jar locked my knee in there and the second jar struck my head against the the back of the seat and my shoulder; then it jerked me loose and threw me out on the floor; one lady in the car fell to the floor that was standing up. She came back to where her husband was sitting with a baby in his arms and tried to get the baby, she was thrown to the floor. A woman sitting up on the front seat, a colored woman, was thrown to the floor right off the seat. The driving of my leg in there between the edge of the seat and side of the car and then wrenching it out and throwing me on the floor twisted my hip loose, made a little lump on my head; my shoulder struck the hardest on the seat. The car was at a right angle with the tracks and the end of the car was partly across the south-bound tracks. It projected far enough to prevent cars from going southward blocked the traffic at that point until after that train went up (the 11:20 train from Belair). I looked at the track; the road bed there was torn up; in between the tracks was torn up; the cobblestones and the track at that point was torn up, just below where the car was standing towards Baltimore, I suppose six feet, probably eight, something like that. They were torn up on both sides of the rail. One end of the rail was sticking about that far above the other rail (indicating about 4 inches). I suppose it was a joint. I don't know whether it was broken or not. A pile of timber was in front of the car. Long timbers, I couldn't say positive what they were, whether they were ties or what they were, the car was jammed up tight against it, and the fender was mashed up to one side. There was a mark on the telegraph pope and some one said at the time: "Look where she struck the telegraph pole."

Dr. Purnell F. Sappington testified that he was called to see the plaintiff after the accident, and that he found him suffering with pain in the hip and down the course of the nerve supply, the upper and lower leg. He diagnosed his injuries as a dislocation of the sacro illiac joint and technically known as a sacro illiac subluxation. He also testified that the injury was permanent, would interfere with his ability to walk without inconvenience and it would give him pain.

Dr. Frederick H. Baetjer, on the staff of the Johns Hopkins University, Baltimore, made an X-ray plate of the injured joint and confirmed the diagnosis of Dr. Sappington.

The testimony of Dr. Howell Billingslea, who examined the plaintiff shortly before the trial, was to the effect that the diagnosis of Dr. Sappington was correct, and there was an injury to sciatic nerve, and just such an injury as had been testified to by the plaintiff's witnesses.

The witnesses, Quickly, Robinson and Driver, who were on the car at the time of the accident, each testified to the excessive speed of the car, as it approached Towson, and that it did not slow up when going through the reverse curve on the track; that two or three of the passengers were knocked from the seat when the car jumped the track and struck the pile of lumber.

The testimony on the part of the defendant, tended to show that the car was running at the usual rate of speed; that it slowed up as it approached the curve; that the track was in good condition, and that the car had been inspected before leaving the barn on the day of the accident, and the car was in good order, except one of the side slides that carried the weight of the body on one side was bent and the other one was broken. The witness Frazier testified upon cross-examination that both of the slides on that truck were out of order; they are near the middle of the truck. Pair of wheels here and pair of wheels here; then it comes between the wheels; that is done to prevent the car rocking too much from side to side. If these slides were not there the car would rock too violently from side to side. They are put there for that purpose.

There was also conflict in the medical testimony of the X-ray experts, Drs. Baetjer and Cotton as to their interpretation of the X-ray plates submitted as evidence in the case.

Drs. Harrison, Fitzhugh and Woodward, who testified on the part of the defendant, did not concur with Drs. Baetjer, Sappington and Billingslea as to their diagnosis and could not convince themselves after an examination of the plaintiff, "that he had a sub-luxation of the right sacro illiac joint, or that the injury was permanent."

Upon these and the other facts set out in the record, we think, the case was one for the consideration of a jury. The alleged negligence of the appellant was not a question of law for the Court, but one of fact to be determined by the jury, before whom the case was tried, upon proper instructions by the Court.

This brings us to the law of the case, as presented by the plaintiff and defendant's prayers, and this, we think, was properly submitted by the plaintiff and defendant's granted prayers. We do not understand that the plaintiff's first and second prayers are seriously questioned. They are the usual prayers in negligence cases like this and have been repeatedly approved by this Court. B. P.R. Co. v. Swann, 81 Md. 409, and cases there cited.

The plaintiff's third and fourth prayers were granted in connection with the defendant's seventh and twelfth prayers, as modified. By the defendant's seventh prayer the jury were told that even if they find for the plaintiff the jury are to allow him only such damages as in their opinion have been affirmatively proved with reasonable certainty to have resulted as the natural, proximate and direct effect of the injury received by him and mentioned in the evidence. The defendant's twelfth prayer as modified was as follows:

The Court instructs the jury that even if the jury shall find that the plaintiff is entitled to recover, and that the injury complained of is existing at this time, if the jury shall so find, yet, if the jury shall further find that the plaintiff could have prevented his present physical condition, by promptly submitting to proper medical or surgical treatment; and shall further find that the plaintiff failed to use reasonable and ordinary care to avoid the continuation of the injury he suffered, if any, and shall further find that such failure on his part to exercise reasonable care and caution to prevent the continuation of his injury, if the jury shall so find, is responsible for his present physical condition, then the plaintiff cannot recover any damages for the pain and suffering, mental or physical, which he has endured, if any, by reason of his neglect in failing to have himself so treated.

These prayers, fully and correctly submitted the law upon the measure of damages, under the facts of the case, and are free from the objections urged against them.

The defendant's second, third, fourth, fifth, sixth and fifteenth granted prayers, together with the plaintiff's granted prayers, correctly stated the propositions of law, applicable to the case and presented the law, in as favorable a light as the defendant had a right to ask.

We find no reversible error in the refusal of the Court to grant the defendant's rejected prayers. Five of these related to the measure of damages and the others were but repetition of the propositions of law covered by the granted prayers, on the right of the plaintiff to recover.

What we have said in discussing the granted prayers will dispose of the defendant's rejected prayers, and also the action of the Court in overruling the defendant's special exception to the granting of the plaintiff's first and third prayers.

The second exception was taken to the following question asked Dr. Baetjer, the X-ray expert: "Doctor, take this plate which I hold in my hand, this plate with the single X mark. I want you to go before the jury and show them and point out on that plate what it shows in reference to the bones of the plaintiff's body."

The X-ray plates and photographs had been proven and also interpreted by Dr. Baetjer and it was competent for him to explain them to the jury. Dorsey v. Habersack, 84 Md. 125;Harford Co. v. Wise, 71 Md. 43; Geneva v. Burnett, 58 L.R.A. 287.

The testimony objected to in the third exception was unimportant and its admission could not have injured the defendant's case. Dr. Baetjer had testified that from the condition of the plaintiff, the slipping of the sacro illiac joint was not congenital, and whether it was produced by some cause since his birth, unknown to the Doctor, could not have prejudiced the case before the jury.

The sixth and seventh exceptions present substantially the same question. Dr. Sappington, the medical expert, was asked this question: "From the physical examination which you made of the plaintiff and from the examination which you made of the X-ray plates taken by Dr. Baetjer, what was your diagnosis of his condition?" The Doctor had previously testified that the X-ray plates substantiated his diagnosis, and having made the physical examination, he was clearly competent to give the result of that examination to the jury. There was no error in these rulings.

The eighth, ninth, tenth and eleventh exceptions will be considered together. They embrace objections to questions propounded to Dr. Sappington and answers given by him as to the probable duration of the injury from which the plaintiff suffered, the duration of the bent condition of the leg, and the duration of the pain. There was no error in the ruling of the Court upon these exceptions. The plaintiff was entitled to show the extent and duration of the injury and whether it would be permanent or not, as a basis for the jury and from which the jury could estimate the damages. Dr. Sappington had attended the plaintiff, diagnosed the injury and understood the case. He was, therefore, qualified both as an expert and as a physician to give an opinion within his knowledge.

The twelfth and thirteenth exceptions relate to the testimony of Dr. Billingslea, as to whether the plaintiff's injuries were permanent or what character they were as they impressed him. Dr. Billingslea was present and saw the other physicians make their examinations and take the measurements of the plaintiff. He testified, "I looked on and confirmed what they were doing. We put him upon the table and he was stripped. We tried to relax his knee, and we were unable to entirely straighten his leg." I think the man was suffering from an injury to the sciatic nerve; there was pressure upon that nerve by the sub-luxation by the change of position in the pelvis bone." He saw the other physicians make their examinations and take the measurements, and participated in the investigation of the injured joint. Under such circumstances, he was clearly competent and qualified to form an opinion and to state the nature and effect of the injury.

There was clearly no error in the rulings in either of these exceptions. Williams v. State, 64 Md. 394; United Ry's v.Seymour, 92 Md. 431.

We have carefully examined the rulings of the Court brought here on the fourteenth, fifteenth, sixteenth, eighteenth, twenty-first and twenty-second bills of exceptions, in so far as they are properly before us, and without discussing them in detail, only deem it necessary to say, that we find no such error on these rulings as would justify a reversal of the judgment.

The motion to dismiss this appeal will be overruled. While the motion raises for the first time the question of the propriety and power of a judge other than the trial judge, to extend the time for signing bills of exception on appeals to this Court, the practice has prevailed and the power has heretofore been recognized and been followed in the Courts of Baltimore City and in some of the circuits of the State. In this case the time for signing the bills of exceptions was on the 14th of August, 1911, extended for two months by JUDGE WILLIAM H. THOMAS, one of the judges of the Circuit Court for Carroll County, who did not sit in the trial of the case. On the 21st of June, 1911, the time for signing these exceptions had been extended by JUDGE JAMES R. BRASHEARS, who sat at the trial of the case, to and including the second Monday of August, 1911.

In Carter v. Md. Pa. Ry. Co., 112 Md. 599, it is said, the power of the Court to grant successive extensions of time for the purpose of preparing and signing bills of exceptions has been recognized by a number of cases. Gottlieb v. Wolf,75 Md. 126; Horner v. Buck, 48 Md. 369; Edelhoff v. Horner Miller, 86 Md. 606.

And it was further said: It has been held, by our predecessors that the subject of the time and circumstances of signing the bills of exception is a matter under the control of the inferior Court whose ruling cannot be revised on appeal. Andre v.Bodman, 13 Md. 256; Wheeler v. Briscoe, 44 Md. 311;Roloson v. Carson, 8 Md. 226.

In Rhinehart v. State, 45 Md. 454, it was said, that a bill of exceptions must be signed by the judge, who makes the ruling to which exception is taken. Hooker v. Sawyer, 56 Md. 468;Soper v. Jones, 56 Md. 503; Albert v. State, 66 Md. 325.

In State v. Weiskittle, 61 Md. 48, it was held that the signing and sealing of bills of exception by a judge after the expiration of his term of office and the qualification of his successor is a void act and no agreement of counsel can give it validity. Dakin v. Pomeroy, 9 Gill, 1; Livers v.Ardinger, 90 Md. 36; Alex. British Statutes, 126, 133.

While the rule is well settled that bills of exception must be signed by the judge who sat during the trial and who allowed the exception, no such reason we think can apply to the mere extension of the time for the signing of the bills when the judge who sat in the case cannot be reached or procured for the purpose by reason of sickness, absence or other sufficient cause. It appears that the rules of the Circuit Court for Carroll County provide that the time for signing bills of exceptions may be extended by the Court and this being so, the act of JUDGE THOMAS, a member of that Court, in allowing the extension here in the absence of JUDGE BRASHEARS, was clearly the act of that Court and is a valid act. It may be proper to say that the better practice is to apply to the judge who sat in the case, and who is required to sign the bills of exception, for the extension of the time, in order to avoid any confusion or misunderstanding between the parties to the case.

Finding no reversible error in the rulings of the Court, either upon the prayers or the evidence, and as the case was fully and fairly submitted to the jury, the judgment will be affirmed.

Judgment affirmed, with costs.