American Express Co. v. Terry

Burke, J., deliver! the opinion of the Court. This is the defendant’s appeal from a judgment for five hundred dollars recovered against it in the Superior Court of Baltimore City in an action for personal injuries alleged to have been sustained by the plaintiff, Howard P. Terry, through the negligence of the defendant. The facts are unusual, but the legal principles which should control the case are well settled. The plaintiff offered evidence tending to prove the following facts: That on the 13th day of March, 1914, whilst he was crossing the intersection of Franklin street and Park avenue, in Baltimore City, he noticed an ²⁵⁶ electric truck running west on the north side of Eranklin street with no one in control.

This truck was owned by the defendant, and was used by it in its business of transporting and delivering articles in the city. At the time his attention was attracted to the truck it was running at the rate of three or four miles an hour, and it increased its speed until the time of the happening of the injuries complained of. Tie ran to the truck, got hold of the steering wheel and attempted to stop the machine, and was injured. The circumstances under which he was injured and the reasons which induced him to intervene to stop the truck are fully stated in his testimony, from which we insert the following quotation: “I had started across the intersection of Park avenue and Eranklin streeet, and had gotten about halfway across Eranklin street and got on Franklin street; I was not noticing anything in particular, but I did glance up and saw an automobile coming down the street, an automobile truck; I looked more closely and I saw the truck did not have any driver; I had noticed before going into breakfast that morning, also when I came out, there were wagons on the north' side of Eranklin street and men just behind them; I instantly thought if that car went the way it was going it certainly was going right into these wagons and would hit the wagons and injure the men and horses and smash up the wagons; my idea at once was to divert the car so as to prevent that ; I ran for the car and reached up for the steering wheel with my right hand and got it, and tried to get hold with my left hand, but could not; I thought I could steer the car north up Park avenue, but I found it was going a little toe fast, and by the time I had got halfway over Park avenue I found I could not do that; I then endeavored to run into the brick wall at the northwest comer, realizing at the time this would not injure anyone, and I had no idea certainly I would have injured myself, I could not see how I could; it happened that the front left wheel of the truck struck that rounded curve, throwing my plans all out.

I turned the car so the back wheel came around this way and threw ²⁵⁷ me and the car over against the pole, and the post canght me right here (indicating) and the car caught me right here (indicating), and the distance between the post and the car was lessening all the while, and as it came closer it brought me around this way (indicating) and I was jammed in about as small a place as anybody could be; as far as I know, I retained hold of the steering wheel; that’s about all I remember until being carried up the steps of the doctor’s house and I came to, and then went to the Y. M. C. A. and was attended there by Dr. Abercrombie.” That his primary purpose, as he testified, in attempting to stop the truck was to save the lives of the men working on the street, and if the truck had not been diverted it would probably have crashed into the wagons. He further testified that at the time he intervened the motor power of the truck was turned on; that he could not say whether he turned the current on in attempting to stop the truck, but if he did it was unintentionally done; that he did nothing to accelerate the motion of the truck. The plaintiff was severely and painfully, but not permanently, injured. He testified that he had operated a gas truck; that he never ran an electric one, but in steering there is no difference in a gas and an electric truck; that he was unable to get in the truck because of certain obstructions, and was unable to turn the truck to the south side of Franklin street or up Park avenue for reasons which he gave to the jury, and that he interfered “to- save life and property.” Charles V. Milholland, an experienced automobile demonstrator, who was familiar with electric trucks and had operated them, testified that in order to stop an electric truck and insure its remaining stationary, the driver “should close his lever and put on his foot brake.

Q. Does that stop the motor and the electric current? A. Yes; absolutely; if he takes it off all points. Q. I understand that in a gasoline truck you can leave the motor go and in an electric truck you have to stop the motor; that is my understanding of the difference between the two kinds of trucks ? A. In the elec ²⁵⁸ trie .track if the switch is on and the brake is on, if the brake is sufficient to hold the point at which that lever is set, the car will not move, but it will burn out the points; if you have enough power to overcome your brakes the car will move, otherwise the points will burn.” Julius J. Small, the driver of the defendant’s truck, testified that the track was in good condition, and that he had examined it that morning before taking it out of the garage; that the second stop he made was to deliver a package at 114 W. Eranklin street; that he threw off the power and closed down the switch.

He said: “I was in the gutter; I had the ear in the gutter; that the front wheels were in the gutter, the back part was out of the gutter; now the gutter at that point is curbed; it was about that high at the time (indicating) and I had my wheels turned in part of the vray first, as the law requires when you stop on a hill; just about then, as I stated before, the car started off, and as the lady told me I dropped everything and run; it was moving very slowly, and I happened to look at the car and at the same time I seen the gentleman run across the street who I afterwards learned was Mr. Terry; he looked} to me as though he come from the southwest corner of Eranklin street across, and as I jumped on the car Mr. Terry had hold of the car at the same time; he had one hand up on the wheel and one foot on the hub, reaching for the dashboard; he was slipping off the wheel, because he could not ride the wheel; the wheel had the speedometer on which registers the mileage and he was trying for that, which he could not reach; just as the car hit the post, that is the trolley pole, I was on the seat and backed away that quick, and naturally Mr. Terry was in between the post and the ear.” That there was a “very slight grade” from 114- W. Eranklin street to the place where the plaintiff was injured. On cross-examination, he testified as follows: “Q. Won’t you explain to the jury why if the wheel was turned in at that angle with no current on the car running it, that car would cor tinue that distance at that rate of speed and you ²⁵⁹ running hastily after it; was it possible for that car to run in that way simply from its own momentum? A. It was, yes; except from power. Q. Without power?

A. Without power. Q. With the brakes on? A. I adjusted the brakes when I got off the car. Q. Would it have gone that way with the brakes on without power?

A. No; it would not. Q. Then the brakes could not have been on ? A. The brakes were on when I left the car. Q. When the car was running that way there could not have been any brakes on ?

A. After I got on the car, at 128, I found the brake was off. Q. Then you had not put it on? A. I had put it on. Q. You hadn’t properly put it on?

A. I had properly put it •on.” The facts stated are sufficient to dispose of the main legal questions presented by the record. At the conclusion of the whole case the Court granted the plaintiff’s third and fourth prayers. The fourth prayer was the usual damage prayer, and the third prayer is here transcribed: “If the jury find from the evidence that the defendant corporation negligently permitted its motor delivery truck to drive itself at a great rate of speed with no one in charge of the engine or steering apparatus thereof through the street in the City of Baltimore in such a manner as to ■endanger the lives and property of persons on the street, and if because of such conduct on the part of the defendant corporation, the plaintiff while acting in a reasonably prudent and careful manner, sustained injuries, then their verdict must be for the plaintiff.” It granted the defendant’s sixth, eighth and eleventh pray■ers and its ninth prayer was conceded. These prayers are as follows: “6th—The defendant prays the Court to instruct the jury that if they believe from the evidence that the defendant’s servant, in charge of defendant’s electric truck, drove said truck to a point on the north side of Franklin street opposite the house known as number lié West Franklin street; that said servant brought said truck to a stop at the point ²⁶⁰ aforesaid, near the curb; that said servant turned off the current and set the brakes of said truck as careful and prudent persons usually do; that said servant in pursuance of his duty left said truck and entered the house aforesaid to deliver a package; that in his absence, said truck, without the fault of defendant or defendant’s servant, began to move