Armiger v. Baltimore Transit Co.

Mitchell, J., delivered the opinion of the Court. The suit in this case was instituted by Harriett N. Armiger, an infant, through Daniel N. Armiger, her father and next friend, for injuries received by her while returning from a visit to Martinsburg, West Virginia, on December 29th, 1935, as a guest in an automobile operated by C. Albert Hodges, Jr., which collided with an automobile owned and operated by Dr. J. Carroll Monmonier. Miss Armiger, at the time of the collision, was eighteen years of age, and Mr. Hodges seventeen. The scene of the impact was on the Frederick Road, in or near Catonsville, Maryland, at a point about seventy-five feet east of the intersection of Frederick Road and Beechwood Avenue.

The general course of Frederick Road is east and west; and, at the time of the accident, the automobile in which the plaintiff was traveling was being driven in an easterly direction, and the course of the Monmonier car was directed westerly. Frederick Road is east and west; and, at the time of the accident, with concrete shoulders; the width of the road, including the shoulders, being at least twenty-two feet. Located north of the highway and parallel therewith,- are double street car tracks of the Baltimore Transit Company, a body corporate; and the southern rail of these tracks is approximately five feet distant from the edge of the north shoulder of Frederick Road. Mr. Holmes testified that, accompanied by Miss Armiger, he left Martinsburg at not later than. 12:30 p. m., and had traveled a distance of approximately ninety-two miles towards Baltimore at the time of the accident, which occurred at about 3:30 p. m.; that, at the outset of their journey, it began to snow and continued to do so; that snow was falling fast at the time ⁴²⁰ of the collision; that the driver’s side of the windshield was equipped with a wiper and defroster which enabled him to see ahead; that, when approximately 300 feet in its rear, he noticed a trolley car sweeper proceeding in the same direction in which he was traveling, and, when 150 feet to the rear of the sweeper, he could see that it was throwing a snow spray entirely across Frederick Road; he was then proceeding at the rate of twenty-five miles an hour; that, at the scene of the accident, snowplows had cleared the highway, leaving a clear width of about seventeen feet for vehicular travel; and that he was driving on his extreme right of the cleared space.

The witness further testified that he could not see through the line of spray ahead of him; that, immediately prior to entering it, he took his foot off of the accelerator and proceeded to pass through it, and that “at that moment there was a crash.” At the time he entered the curtain of spray it was higher than the top of his car and “it was so thick that when I found myself within the spray it was as if a complete blanket surrounded' me.” He did not see the Monmonier car at any time before the crash, and after it his own car came to a stop approximately in the center of the highway. Miss Armiger testified that it was snowing and that there was no windshield wiper or defroster on her side of the car. For this reason she'could not see through the windshield or in front; but she could see out of the side window to her right, and that the car was being driven to the driver’s extreme right, because it was close to the banked snow on her right, as cleared by the snowplows. She did not see the street car sweeper or observe the curtain of snow, nor did she see the automobile of Dr. Monmonier at any time. “Q. You have heard Albert Hodges’ testimony.

Did you know you were running into a spray of snow from this sweeper? A. No, I did not see it. My side of the windshield was closed in with snow. I could not see ahead through the snow on the windshield.” Finally, when asked to tell what she knew about the accident, Miss Armiger stated that they were ⁴²¹ driving on Frederick Road when all of a sudden there was a stop and she was thrown against the windshield and was rendered unconscious.

Dr. Monmonier and the Baltimore Transit Company-are the joint defendants in the case; and, testifying in his own behalf, the doctor stated that he saw the sweeper approaching him at least two squares distant; that the spray represented a curtain of snow extending completely across Frederick Road, and was high enough to obliterate all view of any traffic coming towards him. This condition continued down to the instant of the collision. He had intended to make a right-hand turn into Beechwood Avenue, which would have caused him to cross the street car tracks, but, because of the density of the spray, he decided not to reach the intersection and cross ahead of the sweeper; to the contrary, he slowed down to a practical standstill as the best method of receiving the spray as the sweeper passed him. At that time he was on his extreme right of the highway and only three or four feet from the southern street car rail.

He did not see the Hodges car at the time of impact, but his automobile, after it was struck head-on, was “shunted” around and in front of the snow sweeper, and also struck by the sweeper. His car came to a stop on the west-bound street car. track and was then facing east. David Lee Ford, an employee of the corporate defendant, was called by the plaintiff, and testified that, at the time of the accident, he was a member of the crew of the snow sweeper, acting in the capacity of “plowman”; that the plow is a blade about sixty-five inches long which scrapes along the track but does not throw snow; that it is operated by a separate control from that which operates the brooms; the latter are run by a motor operated by a “shopman” stationed inside of the sweeper, and the speed of the sweeper does not control that of the brooms; the brooms are circular in form, and are located, respectively, under the front and rear of the sweeper; they are set at an angle; the front broom trans ⁴²² fers the snow towards the outside rail, 'and the rear brush throws it from the tracks. Aprons are provided for each broom, to keep the snow from being thrown out too far.

The witness further stated that the method of operating was to cut down the speed of the broom when within about ten feet of an approaching automobile, so as to decrease the spray emerging from the sweeper. He further explained that the motorman or plowman usually signaled the operator of the brooms when to cut down the speed of the latter because of the approach of other vehicles, and that at times the operator of the brooms could not determine the sweep of the snow and its effect upon vehicles in the highway, by reason of snow on the front windows of the sweeper. With the brooms revolving at half speed, the maximum distance to which the spray would be thrown would be five or six feet. At the conclusion of the plaintiff’s case the corporate defendant offered three prayers.

Two of these, one a demurrer to the evidence, and another based upon the theory of contributory negligence on the part of the plaintiff, were not acted upon by the trial court. The third prayer, which sought an instruction that there was no legally sufficient evidence to show that any negligence on the part of the Baltimore Transit Company was the proximate cause of the accident, was granted; as was also the first and only prayer of the defendant Monmonier, which instructed the jury that there was no evidence legally sufficient to entitle the plaintiff to recover against the latter defendant. Three exceptions are found in the record, two of which relate to rulings on evidence, and the third to the court’s ruling on the prayers. The two exceptions as to rulings on evidence will be considered together, as they both relate to the propriety of cross-examining the same witness upon practically the same subject, in the following respect: (a) The witness Ford, in his examination in chief, was permitted to describe in detail the mechanical features of the snow ⁴²³ sweeper, and to state that his instructions were to cut down the speed of the broom, so as to reduce the spray emerging from the sweeper, upon approaching an automobile within approximately ten feet.

He also added that the motorman generally gave the shopman a signal and the latter cut the motor out on the brooms. On cross-examination he was asked if immediately before the accident in controversy he did cut the brooms down, and his reply was that “we did.” (b) The witness then testified on cross-examination, without objection, that, while operating the plow on the occasion of the accident, he observed the automobile of Dr. Monmonier approaching the sweeper. He was then asked: “Now, on this Sunday afternoon, did you comply with all those instructions”; and, over objection, permitted to answer, “we did.” It is contended by the appellant, the plaintiff below, that the trial court erred in permitting the witness to testify, on cross-examination, as to whether his instructions were followed at the time of the accident, the witness not having been asked on direct examination to give any testimony concerning the particular accident for. which the suit was brought. In this country, under ordinary circumstances, cross-examination can only relate to the facts and incidents connected with matters stated in the direct examination of the witness, and it is generally held that, if a party desires to examine a witness as to other matters, he must do so by making the witness his • own.

This rule, however, has its qualifications, and much must be left to the discretion of the trial court in the determination of the question. In 3 Jones on Evidence, sec. 821, it is said: “One of the objects of cross-examination is to elicit the truth of transactions only partly explained, and the rule limiting the inquiry to the general facts stated in direct examination, must not be so construed as to defeat the real object of cross-examination.” After citing numerous cases, the author then concludes that: “Unless a trial court should so far overstep the bounds as to admit that in cross-examination which clearly has ⁴²⁴ no connection with the direct testimony, an appellate court would not be justified in reversing a judgment for such cause, especially where the cross-examination is upon facts competent to be proved under the issues in the case.” Under the facts of the instant case, we cannot say that the trial judge abused the discretion committed to him in ruling upon the evidence as