Baltimore Transit Co. v. State Ex Rel. Castranda

Delaplaine, J., delivered the opinion of the Court. Joseph E. Castranda, age 37, of Baltimore, was killed on Annapolis Road in Baltimore on the night of December 16, 1946, when he was struck by á streetcar operated by the Baltimore Transit Company. This action to recover damages for his death was brought by the State of Maryland for the use of his widow and four surviving children. The accident occurred about 10:15 p.m. at the intersection of Annapolis Avenue, which runs eastwardly into Annapolis Road.

Shortly before the accident Castranda parked his automobile in front of the public library on the east side of Annapolis Road and walked across the street with Franklin C. Elliott to a tavern on the southwest corner of the intersection. On returning from the tavern, the two men walked to the north sidewalk of Annapolis Avenue and then started toward the east side of Annapolis Road. According to Elliott, the traffic light was green when they stepped off the curb. He testified that he walked hurriedly across, but Castranda lagged behind presumably because someone had called him and he turned to speak.

Defendant’s streetcar was traveling north on Annapolis Road. James Jarvis, the motorman, testified that when he reached Waterview Avenue, which runs west ⁴³¹ wardly into Annapolis Road, the traffic light, which is about 100 feet south of the traffic light on the south side of Annapolis Avenue, was red. He saw a tractor-trailer coming on Waterview Avenue, and as soon as the light was green, he started to speed up to get ahead of the tractor-trailer. Though Annapolis Road was well lighted and he had a clear view, he did not see Castranda until he stepped on the southbound track about 35 feet away.

The motorman said he did not reduce his speed, as he supposed Castranda was waiting for the car to pass. He continued to watch the tractor-trailer, and when he looked to the front again Castranda was stepping on the northbound track only about 7 feet away. Castranda looked up, then jumped or fell. The motorman applied the emergency brake, but it was too late.

There was a thud, and the victim was found lying on his stomach in the street near the center door of the car and near the rear of the tractor-trailer, which had stopped about four feet east of the car. Officer Shanahan, of the Baltimore City Police Department, who was sitting in a police car on the west side of Annapolis Road waiting for another policeman to come out of the store on the northwest corner, saw the two men on the southwest corner, and later saw Castranda walking in the street. Immediately after the accident Officer Shanahan asked the motorman: “Didn’t you see that man standing in the street there?” The motorman replied: “No, sir, I didn’t.” One of the passengers on the car also heard the motorman say: “I did not see the man. I only saw the track.” At the trial of the case the motorman did not deny that he had made these statements.

When asked whether he had told Officer Shanahan that he did not see the man, he answered: “That I couldn’t say. I may have said anything at the time. I was upset.” After the trial of this case in the Baltimore City Court in December, 1948, the jury rendered a verdict in favor of plaintiff for $50,000. The trial judge, however, granted a new trial on the issue of amount of damages. ⁴³² The case was then removed to the Superior Court of Baltimore City for trial of that issue.

On May 17, 1949, the jury in that Court awarded plaintiff the sum of $30,000, apportioned as follows: to Dorothy E. Castranda, widow, $9,000; to Edward Castranda, $3,500; to Dorothy Lee Wheeler, $1,000; to Robert Castranda, $7,500; to Anthony Castranda, $9,000. From the judgment entered on that verdict defendant took this appeal. First. Defendant contended that there was no evidence of negligence legally sufficient to warrant submission of the case to the jury.

It is, of course, the duty of the motorman of a streetcar to keep a lookout, signal its approach when such a warning is reasonably necessary, move at moderate speed, and stop when a necessity for stopping becomes apparent. Baltimore Transit Co. v. Alexander, 172 Md. 454, 462 , 192 A. 349 . Moreover, the right of way at a street intersection controlled by a traffic signal belongs to that vehicle or pedestrian whose course is favored by the signal subject to the rights of those already in the intersection. United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24, 29 , 190 A. 768 .

The Maryland Motor Vehicle Act of 1943, which revised the motor vehicle laws of the State,' expressly provides that whenever traffic is controlled by traffic-control signals exhibiting different colored lights successively one at a time, pedestrians facing the signal when the light is green may proceed across the roadway within any marked or unmarked crosswalk, and all vehicles shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection at the time such light is exhibited. Laws of 1943, ch. 1007, Code Supp. 1947, art. 66½, sec. 141. Elliott, Castranda’s companion, testified that he and Castranda, after reaching the north sidewalk of Annapolis Avenue, started across Annapolis Road “right up at the corner” when the light was green. Thus, if that was true, they had the right to continue across the street, although the light changed while they were in the street.

There were no lines on the street to mark the crosswalk for pedestrians at this intersection. But ⁴³³ under the statutory definition, a crosswalk may be either any portion of a roadway distinctly indicated for pedestrian crossing by lines or other markings on the surface or that portion of a roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections. Code Supp. 1947, art. 661/2, sec. 2(a) (9). We find no reason to say that the testimony that Castranda was using the crosswalk was incredible.

Defendant called attention to the statement of Officer Charles Riess, of the Accident Investigation Bureau, at the inquest that Castranda’s body was lying about 40 or 50 feet north of the intersection. However, Officer Riess testified at the trial that the streetcar stopped “a length past Annapolis Avenue.” If the rear end of the streetcar, which was about 40 feet long, was on a line with the curb line of Annapolis Avenue, and if Castranda was lying near the center door, he must have been about 20 feet north of an extension of the curb line, and therefore probably not more than about 15 feet north of an extension of the building line. Hence, if he had been hurled 15 feet, he could have been in the crosswalk when he was hit. Defendant urged that the testimony of the police officer was worthless because it was not consistent with his statement at the inquest.

It is axiomatic that when a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory and uncertain to form the basis of a legal conclusion. Slacum v. Jolley, 153 Md. 343, 351 , 138 A. 244 ; Lusk v. Lambert, 163 Md. 335, 339 , 163 A. 188 . This axiom, however, applies to conflicting testimony given by the witness at the trial, and not to conflicting testimony given at some other trial, since it is the province of the jury to determine the credibility of witnesses, and the solution of the conflict and the weight of the evidence are questions for the jury and not for the court. Foble v. Knefely, 176 Md. 474, 484 , 6 A. 2d 48 , 122 A. L. R. 831. ⁴³⁴ It is undeniable that the motorman should have kept a careful lookout for pedestrians at Annapolis Avenue.

He admitted that he knew from his experience as motorman on this line that “pedestrians cross anywhere along there.” Yet he admitted that as soon as the traffic light at Waterview Avenue was green, he started the car with full power and increased his speed to 20 miles an hour, and did not slow down until he was within 7 feet of Castranda. We think there was evidence from which the jury might reasonably find (1) that the motorman was operating the car at an excessive speed that directly contributed to the accident, and (2) that he did not keep a proper lookout for pedestrians. Likewise, the Court cannot rule as matter of law that Castranda was guilty of contributory negligence. The question of contributory negligence must be considered in the light of all the inferences favorable to the plaintiff’s case that may be fairly deduced from the evidence.

Where there is a conflict of evidence as to material facts relied on to establish contributory negligence, or more than one inference may be reasonably drawn therefrom, the question should be submitted to the jury. In order that a case may be withdrawn from the jury on the ground of contributory negligence, the evidence must show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds. Lozzi v. Pennsylvania, R. Co., 152 Md. 508, 510 , 137 A. 293 ; Jones v. Wayman, 169 Md. 670, 675 , 182 A. 417 ; Beck v. Baltimore Transit Co., 190 Md. 506, 511-512 , 58 A. 2d 909, 911 ; Bush v. Mohrlein, 191 Md. 418 , 62 A. 2d 301 . In addition, before a person killed in an accident can be declared' to have been guilty of contributory negligence as matter of law, the trial court must give consideration to the presumption that he exercised ordinary care for his own safety in accordance with the natural instinct of human beings to guard against danger.

State, to Use of Pachmayr v. Baltimore & Ohio R. Co., 157 Md. 256 , 262, 145 A. 611 ; Sheriff Motor Co. v. State, to Use of Parker, 169 Md. 79, 84 , 179 A. 508 ; ⁴³⁵ Davidson Transfer & Storage Co. v. Baltimore Transit Co., 183 Md. 263, 273 , 37 A. 2d 326 . In the case at bar it appeared that Castranda did not walk as rapidly as Elliott and stopped in the street after the light changed. Nevertheless, if the light was green when he started across the street, he had the right of way. Moreover, since he was endangered by northbound and southbound traffic on Annapolis Road and by vehicles coming from Waterview Avenue and Annapolis Avenue, it may reasonably be presumed that he was bewildered by the streetcar and tractor-trailer coming rapidly toward him and stopped momentarily in the center of the street to keep from being struck.

In view of these conditions on a heavily traveled thoroughfare, where there is a complicated system of automatic traffic signals, the Court cannot hold that negligence on the part of the pedestrian was conclusively proved. Second. Defendant objected because the trial judge refused to instruct the jury that it was the duty of the pedestrian to look and listen for approaching traffic before attempting to cross the road; and if the jury finds that if he had looked or listened he would have known of the approach of the streetcar, and if the jury further finds that he did not take these precautions, then he was guilty of contributory negligence and the verdict must be for defendant. The judge properly refused to give that instruction, because it ignored the testimony that Castranda was crossing the street in the