Baltimore Transit Co. v. Sun Cab Co.

Hammond, J., delivered the opinion of the Court. This is an appeal by the motorman of a street car and its owner, his employer, the Baltimore Transit Company, from a judgment in favor of a passenger on the street car which had collided at an intersection with a taxicab, injuring the passenger. The jury exonerated the owner of the cab and its driver. The appeal is from the judgment in favor of those defendants, as well as from the judgment in favor of the passenger.

Only the passenger, the appellee, offered testimony. The trial court refused to direct verdicts for the defendants, who then submitted the case to the jury. Three questions are presented for decision: 1, Was there evidence of negligence on the part of the operator of the street car which was the proximate cause of the injury? 2, Did the plaintiff by his own actions disentitle himself to recover? 3, Did the court err in charging the jury that the boulevard law of the State applied to a situation where one of two vehicles approaching ⁵⁵⁹ from opposite directions turned in front of the other at an intersection? The appellee boarded the street car at Linden and North Avenues in Baltimore.

About a dozen people were waiting on the corner and he was the last to get on. The car was so crowded that it was a little while before he could pay his fare and get his transfer. The operator of the car testified that the street car was loaded to capacity and that no more people could have gotten on the car, and that he would not have stopped to take on any more passengers. As the car proceeded down Linden Ave., the appellee was on the front platform holding on to the windowsill or dash.

McMechen Street is a through street so that vehicles, including street cars, approaching from the north or south on Linden Ave., are required to come to a full stop and to yield the right of way to traffic on McMechen Street. There are at least two versions in the testimony as to what occurred as the street car approached McMechen Street. The motorman says that he came to a full stop, discharged passengers and then started off again and that, as he did so, the taxicab which had been coming north on Linden Ave., after stopping, suddenly started up and turned west in front of him just before the collision occurred. No one else in the case agreed with this version, including the jury.

The motorman says further that just before the impact, perhaps when the car was four or five feet from the taxicab, he applied the brakes — “I put on the brake the best I could * * *.” When asked whether he jammed his brakes when he saw the cab pull to the left, he said: “* * * I did everything I could to stop — I put the brakes on”, although he explained that there was no need to jam the brakes. Other testimony was that the street car had decreased its speed somewhat, or at least had not increased its speed, as it came downgrade from Wilson Street toward McMechen but that it did not come to a stop at McMechen Street, continuing across the intersection at rather slow speed until it was apparent that there might be a collision with the taxicab which had stopped, and had then started up and, in anticipation that the street car would stop, had turned left on Mc-Mechen Street to proceed west. Further testimony was that ⁵⁶⁰ the cab had been waiting in the westbound position long enough for the driver to attempt to put it in reverse as he realized that the street car was not going to stop. The appellee produced evidence that as the motorman realized the collision was imminent, he threw on the brakes which caused the street car to jiggle and to begin rocking, and that this precipitated the appellee into the well between the platform of the car on which he was standing and the closed door of the car.

As he was getting up from the fall, the collision occurred and he was thrown down again. One of the witnesses said that when the motorman attempted to stop the car “* * * it was shaking back and forth * * * any street car that stops, tries to stop real fast there is a shaking action” and that when the collision occurred, the street car was shaking. He said the street car “shimmied and shook from side to side” and that no one was thrown down except the appellee, but that “People were tossed to and fro but they were holding on.” After the street car struck the cab it continued south on Linden Ave. for some feet, so that when it came to rest, its rear half was blocking the intersection. The cases involving injuries caused by the motions or movements of a street car have permitted or denied recovery, depending upon whether such motions or movements were unusual or extraordinary, or usual and incident to normal operation.

Generally, where recovery has been allowed, the movements causing injury resulted from the negligent operation or management of the car or from a defect in the car or roadbed. Where recovery has been denied, usually there has been no showing of negligent operation that produced the movement complained of and the testimony has been mere characterization of the witnesses that the motion was extraordinary or violent and there was no independent evidence to support the characterization. Kaufman v. Baltimore Transit Co., 197 Md. 141, 146 , was such a case. There Judge Markell, for the Court, reviewed prior cases and pointed out that there was testimony that the jolt to which the injury was attributed was very severe and unusually hard, but also it had been said that the jolt was “* * * ‘just like it always does when it starts off.’ ” It was noted that “* * * ‘electric cars do not run perfectly smoothly ⁵⁶¹ and there are certain movements to which they are subject, and which do not justify the inference of negligence or carelessness on the part of those in charge.’ ” The opinion continues : “Ordinarily the only direct evidence of the cause of a jolt or movement, and of negligence vel non, would be testimony of the operator of the car.

But plaintiffs are not required to prove their cases out of the lips of their adversaries, and only occasionally are able to do so. * * * In the absence of such evidence, the results of the movement, upon the passenger in question or other passengers or both, may show the movement to have been so unusually violent or sudden as to justify an inference of negligence. * * * Such an inference must be drawn from facts, not from adjectives or other words used by witnesses to characterize the movement * * In Grinath v. Balto. & Bel Air Ry. Co., 145 Md. 290 , a passenger had gone into the car and was still standing when the motorman “ ‘* * * started the car with a sudden jerk, so sudden that the windows shook * * *’ ” and was thrown to the floor. The Court noted that irregular motions are unavoidable and to be anticipated in the ordinary course of railway transportation. It pointed out that the duty of the street railway company was to exercise the highest care consistent with the nature of its undertaking and that it was required to use the utmost care and diligence to avoid endangering the lives and limbs of those whom they undertake to transport.

The motorman testified in that case that when he applied the power “* * * ‘she started with a quicker grab than he expected.’ ” The Court held that the sudden movement which caused the fall and injury could not be said to be expected in the ordinary course of normal operations. The Court held that there was error in the directed verdict for the railway company and that the case should have gone to the jury. In United, Rwys. Co. v. Phillips, 129 Md. 328 , there were no vacant seats when the passenger got on the car so she stood, holding onto the back of the seat in front of her, which she said was the only way she could hold on.

After the car had started and gone several feet, she said: “ ‘* * * there was a sudden and unusual jerk * * *.’ ” She continued: “ ‘You know often when a car starts there is a little jerk, and you have to be prepared for this, but this was such a violent jerk ⁵⁶² that it caused the passengers to scream * * * and it swayed me forward and threw me down on my knees.’ ” The Court held: “The jerk or lurch of the car as described by the plaintiff in this case, judged by its results upon her and upon the other passengers, and apart from the adjectives used by her in describing it, shows it to have been of an unusual and extraordinary character, and so out of the ordinary as to suggest negligence in the management or control of the particular car.” We think that the case before us falls on the side of the line that entitles the passenger to have the jury pass on the negligence of the carrier. There was evidence, if believed by the jury, that permitted the finding that the motorman violated a statutory duty to stop at McMechen Street and that as a proximate result of this violation of legal duty, he was compelled to do everything he could to stop the car suddenly to avoid hitting the taxicab, that this brought about a rocking, swaying or jiggling of the street car that threw the other passengers back and forth and the appellee into the well and so brought about his injury. We feel that apart from the characterization of the movement of the street car by the witnesses, the descriptions of the effect of the sudden slowing and the impact, including the testimony of the motorman as to the necessity for the sudden stop and of his utmost efforts to bring it about, make the jury the proper ones to determine whether there was primary negligence. The appellants’ argument that the appellee’s own actions disentitle him to recover has two thrusts.

They say first that the passenger assumed the risk when he boarded the street car, and next that he was guilty of contributory negligence as a matter of law. In Warner v. Markoe, 171 Md. 351, 359 , Judge Bond for the Court differentiated contributory negligence from assumption of risk in these words: “Contributory negligence, of course, means negligence which contributes to cause a particular accident which occurs, while assumption of risk of accident means [voluntarily incurring the risk of] an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting. Contributory negligence defeats recovery because it is a proximate cause of the accident which happens, but assumption of the risk defeats recovery ⁵⁶³ because it is a previous abandonment of the right to complain if an accident occurs.” It is the duty of a carrier to safely transport to his destination one whom it permits to enter its vehicles. It seems clear to us that a passenger who is permitted to enter a street car is not required correctly to anticipate whether he will find a seat or other safe place in which to