United Rys. Co. v. Carneal , 110 Md. 211 ( 1909 )

This is an appeal taken by the defendant below from a judgment for $7,500 rendered against it in the Baltimore City Court in an action by the appellee to recover damages for personal injuries sustained in an accident which occurred March 14th, 1907, at the corner of St. Paul and Twenty-third streets, in the City of Baltimore, and which it is charged in the declaration was the result of the negligence of the defendant, without any negligence on the part of the plaintiff directly contributing thereto.

In the Court below three exceptions were taken by the appellant, the first to the admissibility of certain testimony, and the second and third to the action of the Court upon the prayers offered by the litigant parties.

The first prayer of the defendant offered at the close of all the testimony, being in the nature of a demurrer to the evidence, brings up for review the testimony in the case.

The plaintiff was a female infant, not quite three years of age, who had slipped away from her mother's home at 2234 North Calvert street, and had strayed from thence to the corner of St. Paul and Twenty-third street. The only eyewitness of the accident produced on the part of the plaintiff was William A. Lewis, a colored wagon driver, whose testimony it is important to consider.

In his examination in chief this witness states: "On this morning I had on a load of furniture going up the right-hand side of St. Paul street, about 20 feet south of Twenty-third street, when I saw this car coming, and I saw this little child start from that corner, which, I guess, is the northeast corner, to the southwest corner, and I saw this car coming at a good speed, and I said that child is gone, and almost in the time I could say that the car had struck her, and I thought it had cut her in half; and I got so nervous I didn't know what I was doing. I saw a lady standing on the corner trying to wave the car down in the first place, but the car didn't stop, and this man didn't seem to see anyone, as he was looking towards to the college." The college referred to by this witness is the Woman's College, located on the west side of St. Paul street, between Twenty-third and Twenty-second streets, and which was to front and right of the car as it was going south down St. Paul street.

The witness further testified that when he first saw the car it was about 100 feet north of Twenty-third street; that it passed Twenty-third street pretty rapidly, but after the accident stopped about twenty-five feet south of said street. On cross-examination this witness stated that when he first saw the car it was about 100 feet north of Twenty-third street, and at that time the child was "standing still" on the northeast corner of St. Paul and Twenty-third streets, and he could not tell how far the car had gone from this point, 100 feet above Twenty-third street, when the child started to cross the street. The witness first saw the motorman when the car struck the child, at which time his head was turned to the right and he had "one hand on one thing and one hand on another," but didn't see him winding down, and also stated that the child, the instant she started from the pavement, began to scream.

Mrs. J.R. Miller, another witness on the part of the plaintiff, stated that she was on the northeast corner of St. Paul and Twenty-third streets, but did not see either the child or the accident. She wanted to board the car and signalled the conductor to stop, but his attention seemed to be turned toward the college and he didn't appear to see her, and that the car was going very rapidly.

On behalf of the defendant Hoffman, the motorman, testified: "Just as I was crossing the corner I noticed the child standing on the southeast corner of St. Paul and Twenty-third streets, and as my car got near, the front end very near the middle of the street, this child made a full dash and ran across the street and ran against the front side of the car, and it knocked her down." He further said that the car was drifting down grade, without power, at a speed of about four miles an hour; that the rails were slippery from the damp and misty weather, and that he applied the brakes and used sand and made every effort to stop the car as soon as he saw the child start to cross, and that he succeeded in stopping the car in about a length or a length and a half. That he sounded the gong coming down St. Paul street before he got to the corner.

Matthews, the conductor, corroborated the motorman as to the speed of the car and the sounding of the gong.

David G. Murray, another witness on behalf of the defendant who saw the accident, testified that when the child started to cross the street from the southeast corner the car was about midway of Twenty-third street, going at a moderate speed, and that it seemed to him that the child ran into the car rather than the car running into the child.

Mrs. Geneva S. Conrad testified that the car was going at a moderate speed, evidently slowing down for the crossing.

Nelson Lloyd also saw the accident, and testified that the car was going at a moderate speed; that the child started to cross the street when the car was half a length from her, and that the motorman seemed to do all he could to stop the car, but that the child ran right in front of it.

In consideration of the first prayer of the defendant, we must assume that the plaintiff's evidence, although contradicted by that of the defendant, is true, and, so assuming, we think it was sufficient, as tending to show negligence on the part of the defendant, to take the case to the jury.

Courts are cautious not to invade the province of the jury, and, although the question of negligence may become a matter of law, the circumstances of the case must be clear and decisive to justify a withdrawal of the case from the consideration of the jury. McMahon v. N.C.R.R. Co., 39 Md. 438; ConsolidatedRailway Co. v. Rifcowitz, 89 Md. 338; B. O.R.R. Co. v.State, 36 Md. 366; Cumberland Valley R.R. Co. v. Maugans,61 Md. 60.

As to the defendant's second prayer we think likewise that it was properly refused. In spite of the negligence of the plaintiff or of the parents of the plaintiff; lawfully imputable to her, she was still entitled to recover unless the jury should find that after the motorman saw, or could have seen, her peril he could not, by the exercise of ordinary care, have avoided the accident. So far as her conduct was concerned she could only be held to such a degree of care as might be expected from one of her age and intelligence. According to the testimony, the defendant was 100 feet away when he could have seen the infant on the street corner, and though the principal witness could not fix the distance that the car had proceeded from this 100-foot point when the plaintiff assumed a position of peril by starting to cross the street, yet under the general statement made we think it might well have been left to the jury to say if, in the exercise of ordinary care and caution, the motorman should not have brought his car to such a degree of locomotion as would have enabled him to stop the same after seeing the peril of the plaintiff, it being his duty under all circumstances to have his car under better control at a street corner, where pedestrians usually cross, than in the middle of the block.

The evidence on the part of the plaintiff failed to locate the relative positions of the car and the child at the time the latter started to cross the street, but by several witnesses the defendant proved that the car was about midway of Twenty-third street when the child started to run across St. Paul street. The point of collision was about twenty-one feet from the curb near which the child had been standing, and about twenty feet from the point where the motorman first saw the child. In an adult, or a youth of maturer years, an attempt to cross under such conditions would have presented a different question for the consideration of the Court. But ordinary care is a relative term. The same standard is not expected of an infant as of a mature man. What would be regarded as careless and blameworthy in the one would not be necessarily so held in the case of the other. Each case must depend upon its own circumstances. In the case of Consolidated Railway Co. v.Rifcowitz, 89 Md. 338, a woman was injured at a street crossing by collision with a car. The car tracks were only six feet from the curb from which the woman started to cross and the car was only fifteen feet away, although the woman testified that she looked before attempting to cross and saw no car coming. The car was going ten or eleven miles an hour. The Court declined to take the case from the jury on the theory that the car was going at a rapid speed, which should have been slackened as the crossing was approached, so that it might have been stopped promptly in case of necessity. In the case under consideration there is some evidence to show that the car was going "very rapidly" and that the motorman could have seen the child when 100 feet away; that he was not looking ahead, but to the side of the car. Without passing upon the weight of this evidence, when contrasted with the evidence of the defendant, or intimating an opinion upon the verdict rendered, we think the question of contributory negligence was properly left to the jury. Booth v. McLeanContracting Co., 108 Md. 456; North Balto. Pass. Ry. Co. v.Arnreich, 78 Md. 589; McMahon v. N.C.R.R. Co., 39 Md. 438;McDonnell's Case, 43 Md. 535; Wright v. M. M.R.R. Co., 4 Allen Rep. (Mass.); Gibbons v. Williams, 135 Mass. 333.

The plaintiff's first and second prayers correctly state the law in the case. They are reproduced from McDonnell's Case,supra, in which the facts are so similar as to make the same law applicable.

The rejection of the eighth and ninth prayers of the defendant we think was proper. By its sixth and seventh prayers, which were granted, the question of ordinary care was submitted in as favorable an aspect as the defendant could demand, and the eighth prayer was misleading because, as we have already stated in discussing the evidence, the child was only bound to the exercise of such care as might be expected from one of her age and intelligence, and when such an infant is negligently on the street, and her situation at a street corner is apparent, a correspondingly greater degree of care was demanded of the defendant to avoid accident than would have been required in the case of an adult. While the prayer as an abstract proposition may be correct, yet it would be misleading if applied, in the manner offered, to the facts of this case.

The defendant's ninth prayer was also properly refused. The law on this point having been stated in the plaintiff's second prayer, it could not have been granted without such modification as would harmonize the two prayers.

The first and third bills of exception, which involve the same question, may be discussed together. After the prayers had been offered, the Court announced that certain testimony of one of plaintiff's witnesses, bearing on the subject of injury and consequent damage, admitted against the objection of the defendant, had been erroneously admitted and suggested to defendant's attorney to move that it be stricken out, but said attorney declining to do so the Court modified the fourth prayer of the plaintiff so as to exclude consideration of the objectionable testimony. After the opening argument of the plaintiff's counsel to the jury, the Court further modified this fourth prayer, in conformity with a special exception which had been filed thereto by the defendant, and read the prayer as modified to the jury. While it is undoubtedly true that a trial Judge, because of his high and authoritative position, should be exceedingly careful in any remarks made by him during the progress of a trial, either in passing upon evidence or ruling upon prayers, and should carefully refrain, either directly or indirectly, from giving expression to an opinion upon the existence or not of any fact, which should be left to the finding of the jury, yet this Court has frequently said that a Judge may at any time during the trial modify his instructions, or revoke them altogether, if convinced of error in a previous ruling. In the present case, though the proceedings were irregular, the modifications were practically at the instance and for the benefit of the defendant, who should not now be heard to complain. Coffin v. Brown, 94 Md. 190; Butler v. Gannon, 53 Md. 333; Sittig v. Birkestack, 38 Md. 158.

The judgment of the lower Court will be affirmed with costs.

Judgment affirmed with costs.

WORTHINGTON, J., dissented.