Baltimore Transit Co. v. Worth

Collins, J., delivered the opinion of the Court. This is an appeal by the Baltimore Transit Company, defendant below, appellant here, from a judgment in favor of James W. Worth, plaintiff below, appellee here, to his own use and to the use of The Consolidated Gas, Electric Light & Power Company of Baltimore City in the amount of $20,000, entered in the Superior Court of Baltimore City, in a suit for personal injuries. (1) Appellant contends primarily that there was not legally sufficient evidence of primary negligence on the part of the Baltimore Transit Company or the operator of the streetcar to take the case to the jury and that, therefore, its demurrer prayers and motion for a judgment non obstante veredicto should have been granted. Where demurrer prayers are offered, the Court, in deciding whether they should be granted, resolves all conflicts in the evidence in favor of the plaintiff and the truth of all evidence and such inferences as may naturally and legiti ¹²³ mately be deduced therefrom which tend to support the plaintiff’s right to recovery will be assumed.

Armiger v. Baltimore Transit Co., 173 Md. 416 , 425 and 426, 196 A. 111 . We shall therefore review the evidence in the light most favorable to the appellee in considering the demurrer prayers. The appellee, Worth, six feet tall, on April 1, 1944, was working in a manhole four and one-half feet deep, located in the east bound traffic lane of Fayette Street, Baltimore City, between Howard Street and Park Avenue, about eight inches south from the southernmost rail of the east bound streetcar tracks. The location is sixty-five feet west of the intersection of Fayette Street and Park Avenue.

Worth was known as an “underground helper.” His duty was to go down into the manholes, pull the cables through the conduits, and install them in their proper place against the underground wall. The other members of his immediate crew, all of whom were employees of the Consolidated Gas, Electric Light & Power Company of Baltimore City, were: the foreman, John F. Schmelz, George E. Off, and Joseph Sergi. The duties of Off consisted in handing tools to Worth, the underground helper, and when a streetcar passed at close intervals, as each one passed, he would shout “hot rail” to Worth as a warning and would press his foot on Worth’s back to let him know of the danger above. Joseph Sergi’s duty was to take care of the wooden guard rail, painted yellow and black, with a red flag attached, which was placed around the manhole while it was open.

When vehicles and streetcars passed by, because the streetcars came so close to the manhole that the guard could not stay in one permanent position, his duty was to move the guard back and forth, if necessary. While the crew was thus working in this manhole, several east bound cars, traveling on the southernmost rails on Fayette Street, passed the manhole. The watchman, Sergi, testified that he was standing inside the wooden guard rail with his face toward the ¹²⁴ north, ready to grab the guard rail if necessary and move it if he thought it was necessary to avoid an accident. One of the men in his crew had put a chalk mark in the street so when the streetcars went by they knew where to place the guard.

At the time of the accident the guard was just a trifle south of the chalk mark, enough room for a streetcar to go by. Before the accident he was watching the manhole guard and one of the green streetcars came by and stopped right at the center of the manhole. The motorman opened the doors to let the passengers off. Sergi threw his foot across the manhole and “hollered to the motorman to pull down a bit” so the passengers would not step into the manhole.

This was done and then two or three streetcars came down and passed before the one involved in the accident. He saw the east bound' streetcar, involved in this accident, as it approached the manhole, and, although he had an unobstructed view of the streetcar, he saw nothing unusual about it and thought it would clear the guard rail. If he had seen a projection he would have moved the guard rail, but he did not see any projection. He said, after the green car went by, “this streetcar came down and hits the manhole guard of ours.” He further said, when asked the following, question by the Court, “Tell us what you saw.

The streetcar was going east, what happened? A. He hit the manhole guard and part of it went into the hole, knocked George Off over, and I ran over and grabbed hold of it and put it around the manhole to be safe, and George said, ‘Get Jim out of the hole,’ and we got Jim out of the hole.” He testified again that part of the manhole guard went in the hole. When asked what part of the streetcar struck the guard, he answered, “One of the steps in the back of the streetcar,” and he thought that those steps were used in casé the rope broke on the trolley. These are small steps and fold against the side of the streetcar and he thought about four of these steps were down as the streetcar passed the guard.

He did not see the steps down before the accident occurred. He first noticed the steps were down ¹²⁵ as the car was going by. The front of the car got by all right. When the car hit the guard it knocked George Off down.

He and Off took Worth out of the hole. Worth was unconscious, “blood coming down,” and Worth was taken to the hospital in an ambulance. On cross-examination Sergi said that he did not notice anything sticking out of the car until after the streetcar had passed and the accident was over. George E. Off said that he was standing by the manhole ready to hand Mr. Worth a tool.

He testified that the guard rail was south of the north rim of the manhole, over part of the manhole at the time of the accident. Three or four streetcars passed and the green car stopped at the hole. The passengers were prevented from getting off there. The streetcar pulled up further and he crouched down to warn Mr. Worth. “It was more streetcars coming.

I told him hot rail’ and pressed my foot on his back to let him know there was danger up above and the next thing I knew I was lying out in Fayette Street.” He said that he thought two or three cars passed while he had his foot on Worth’s back. He said he was thrown about fifteen feet. He jumped up and went over to the hole and saw Mr. Worth lying, and crouched over. “I told Mr. Sergi to get him out of there and see what is wrong and I pulled him out of the hole, and found blood all streaming down his face.” He was unconscious. Off testified that Worth was in a crouching position with his head below the surface of the street at the time of the accident.

After the accident the guard rail was “laying flat.” James F. Smith, the operator of the streetcar involved in the accident, testified that his car was painted yellow. He had had no conductor with him since his car had become “a one-man operator.” He started his run that morning from Park Terminal and the terminus was Bed-ford Square. His schedule prescribed forty-seven minutes to cover that route. The accident took place about two o’clock and it was his third or fourth trip from Park Terminal to Bedford Square that day.

On account of ¹²⁶ traffic conditions he stopped before he reached Park Avenue. When he stopped, the manhole in question was about twenty-two feet in front of him and he noticed that there was someone working in the manhole. He pulled down to the manhole slowly. He noticed a man’s head projected above the surface of the street facing south.

He said there was no guard around the manhole but it was near the manhole. There were other men present beside the one in the manhole. He went slowly by the manhole and one of the men working there waved him across. He was going slowly.

The first that he knew of the accident was when he was almost up to Miller Brothers, between Liberty and Hanover Street. An officer, who was on the car, came up and spoke' to him and as a result he stopped the car. When he stopped the streetcar he went back to the accident to get what information he could. Before he went back an officer in uniform was present.

Smith then said: “I looked at the roof steps before I went back. I found some of the steps down but how many I can’t recall. I remember some of them being down.” He later admitted that positively the first one from the ground was down. He did not notice any indication that any of the steps that were down had come in contact with anything.

He said, before he started from the Park Terminal, he inspected the streetcar to see among other things that the steps were pushed up in proper place and the steps were closed when he left Park Terminal on this particular journey. The steps are supposed to be folded against the side of the car when it is in motion. These roof steps, according to other testimony, when open extend 3 Yz inches further outside of the streetcar than when they are closed, and two inches beyond the beading or rain sill, fourteen inches above that step and forty-seven inches above the ground, permanently attached and running along the entire length of the streetcar. The width of the tread of the roof steps is about four inches and the steps are very thin.

They were painted yellow, the same ¹²⁷ color as the car, and the height of the bottom step when open is from 32% to 33% inches above the ground. The second step from the bottom is fifty inches above the ground. This height varies with the unevenness of the ground and with the weight of the passengers in the car and the pressure on the springs of the car. According to Exhibit 8, offered in evidence, the dent on the guard rail is about 31% inches above the ground.

The guard rail is 40% inches high. These steps are made of steel and it would be impossible to bend them with a piece of wood. Smith testified that he had had occasion to use these roof steps at times when the trolley came off the wire and the rope broke. On those occasions he pulls the steps down and goes up on the roof to pull the trolley pole down and fixes the rope, and that is why the steps are there.

He said, as far as he could recall, the trolley rope did not break on the trip when the accident happened, and he had no occasion to go up on the roof of the car that particular day. He further testified that on a number of occasions when he reached the end of the run at Bedford Square he had found some of the roof steps down. When asked how they happened to get down, he said that this was due to boys “hooking rides” on the back of the car and they pull the roof steps down so they can be secure in hanging on the cars, and passengers often call his attention to that. He said that there was not anything said to him on this particular run about boys hanging on the roof steps.

He further testified that he had a rear vision mirror to assist him with the door which allows people to alight from the rear of the car. He said that with this rear vision mirror he could not see outside of the streetcar at all and, “if you wish to see whether there was anything on the outside of the streetcar, you would have to bring the car to a stop, open the front door and look back along the side of the car.” He testified that he made sure that the front of his car would clear the manhole but that to be sure the entire car would pass the ¹²⁸ manhole, he would have had to stop his car, open his front door and look back along the right side of the car. When asked why he did not stop and open the doors and look all the way back to see that he had cleared everything, he answered: “The other car had passed him. I was certain everything was all right.

I never gave it a thought that something was going to happen.” He said that one of the men in the crew waved him across. On cross-examination he admitted that sometimes in traffic, in passing close to objects, the roof steps when down are liable to cause an accident; that he knew that the steps being down had caused accident in some cases; that in looking through the rear vision mirror he could see if anyone was hanging on the side of these steps but when he was'busy all the time on the streetcar, “You don’t always think about looking”; that he had told the Company on several occasions that boys had been hanging on the back of the car and leaving the steps down and this was liable to cause accidents and that it seemed to be a condition that was hard to correct; that on the newer type of cars these steps are carried in the car and inserted in sockets when they are to be used. The car involved in the accident was an old two-man car which had been remodeled into a one-man car. Traffic Officer, Charles W. Bredenburg, stationed at Liberty and Fayette Streets, testified that he was in front of Miller Brothers restaurant relieving a traffic jam.

He received information that a streetcar had struck a man. He stopped the streetcar at Hanover Street and told the motorman he had had an accident. He examined the streetcar and found that on the rear there were five steps going up to the roof. All five steps were down.

On the bottom step there was no indentation “where it had struck something.” He said that these steps were extending out and can be folded up on hinges so that ordinarily when the trolley is running the steps are up, but once in awhile a trolley will come through with the steps down. He said that the guard rail had been split. He did not see the streetcar before the accident. ¹²⁹ Officer Wilbert O. Roten, a member of the Baltimore City Police Force, testified that he was on the streetcar involved in the accident. He said the car proceeded across Howard Street and down Fayette Street to Park Avenue.

He was not paying much attention to whether the streetcar was stopping in the block. Traffic was heavy for Saturday afternoon and the motorman of the streetcar seemed to be taking his time down Fayette Street. He heard a crash and happened to glance down through the bottom of the glass door on the right hand side of the car at the rear. He saw the yellow and black guard rail go sliding across the street.

After he heard the crash and saw the guard rail sliding across the street toward the curb, he started to work his way to the front of the car. The car stopped opposite Miller Brothers. He stated, “I do not know what part of the streetcar struck the guard rail, the rear doors were shut.” He did not go back to the scene of the accident. He further said the streetcar was going very slowly as the traffic was heavy.

The foreman, John F. Schmelz, was not at the scene and knows nothing about the accident. The appellee, James W. Worth, remembers nothing about the accident or the immediate preceding events and is permanently and totally disabled. Appellant contends in its argument (a) that the case should not have been submitted to the jury because there is no evidence that the roof steps on the right rear of the streetcar were open prior to the happening of the accident. (b) It contends that even if there was evidence legally sufficient to prove that the roof step on the car was open prior to the happening of the accident, and that the guard rail struck it, proof of that fact alone would not be sufficient to take the case to the jury in face of the total lack of evidence that the defendant or its operator knew or by the exercise of ordinary care could have known of the position of the step in time to prevent the accident. ¹³⁰ (a) As contended by the appellee, surmise and conjecture are not sufficient basis for belief in reaching justiciable conclusions on facts.

Thompson v. Sun Cab Co., 170 Md. 299, 306 , 184 A. 576 . In this case we have direct evidence that the other street cars had passed the guard in the same location and none of these cars had hit the guard. There is also direct evidence that the front of the car safely passed the guard and Officer Roten testified that he heard a crash and happening to glance down through the bottom of the glass door on the right hand rear side of the car saw the guard go sliding across the street. It is not disputed that the front of the car passed the guard.

The motorman testified that the car was the same width all the way through from front to back except sometimes where the car is out of line. As there were no projections from the front of the car, that were not projections from the rear of the car, except the roof steps when open and as it is not contradicted that the lower rear roof step was open immediately after the accident, it is reasonable to infer that the lower roof step when open hit the guard. Although it is true that the split mark on the guard might have been caused by the guard falling on the street, yet the fact that this split mark corresponds closely in distance from the ground with the height of the roof step above the ground, is additional evidence that the roof step hit the guard. Also, according to the evidence of the operator of the streetcar, on previous occasions he had found some of the roof steps down.

Officer Bredenburg testified that there was an indentation on the bottom step “where it had struck something” and that the guard rail had been split. He said that all five roof steps were down after the accident. In addition to these facts the testimony of Sergi, the watchman, although not entirely convincing on the point as to whether he saw the lower step hit the guard rail, was admissible. He said at one point, when questioned by the Court, that the streetcar hit the guard.

He stated further in his testimony that one of the steps in the back of the streetcar struck the guard and he thought that ¹³¹ those steps were used in case the rope broke on the trolley. He further said he did not notice the steps down as the car was going by; that the front of the car got by all right, but when the car hit the guard it knocked George Off down. It is true that on cross-examination Sergi testified that he did not notice anything sticking out of the car until after the streetcar had passed and the accident over. In the split second in which this contact occurred between the guard and the streetcar, it is probable that all the details of the accident might not have been minutely observed.

We are of opinion, from the facts as above set forth, that as the front of the car passed the guard; that as the only projection in the rear of the streetcar that was not in the front, were the roof steps when open; that as the officer, Roten, looked out of the rear door of the car and saw the guard rail go sliding across the street after he heard the crash; that as Officer Bredenburg said all five roof steps were down after the accident; that as the split mark on the guard corresponded more or less with the height of the bottom roof step above the ground; together with Sergi’s statement that one of the steps in the back of the streetcar struck the guard, all amount to sufficient evidence from which a reasonable mind may infer that the lower roof step hit the guard rail, and these facts go beyond mere surmise or conjecture. (b) Appellant contends that even if the roof step was open prior to the happening of the accident and the guard rail struck it, proof of the fact alone would not be sufficient to take the case to the jury because there is no evidence that the defendant or its operator knew, or by the exercise of ordinary care could have known of the position of the step in time to prevent the accident. Under the evidence offered, we do not find this contention tenable in view of the testimony of James F. Smith, the operator of the streetcar involved in the accident. He testified that before he left Park Terminal he examined the streetcar to see among other things whether the roof steps were pushed up in proper position.

He therefore ¹³² knew that at times they were not in this proper position. He testified that on a number of occasions, when he reached the end of his run, he found some of the roof steps down and explained this by the fact that boys pulled the roof steps down and passengers often called his attention to this. He said he had told the Transit Company about this. He further said that as his rear vision mirror did not assist him in seeing outside the streetcar, and in order to see whether these roof steps were open before the accident it would have been necessary for him to bring the car to a stop, open the door and look back alongside of the car, which he did not do.

He testified, however, that he made sure that the front of his car would clear the manhole. He attributes his failure to look back to the fact that the other cars had passed, that he was certain everything was all right and never thought that anything was going to happen, and that one of the men in the crew waved him across. He testified that he stopped twenty-two feet before he reached the manhole- and noticed that someone was working in the manhole. He pulled down slowly and went slowly by the manhole.

He therefore knew that he was in a “tight” place. He knew, according to his own admissions, that the steps came down. He should have known that Sergi in front of the car might not have seen these very small, thin steps protruding three and one-half inches beyond the rear of the car, and therefore should have opened his front door and looked along the side of the car to see •whether the steps were down. The fact that he looked at the roof steps before going back to the scene of the accident might be interpreted as evidence that he thought they might be down.

This Court is therefore of opinion that the operator, from his previous experiences with these steps, in the exercise of ordinary care in this “tight” place should have known of the position of the steps before proceeding to pass the guard rail in time to prevent the accident, according to the reasoning of an ordinary mind, and that this was a jury question. Appellee admits that appellant would not have been negligent ¹³³ if the steps were always out or supposed to be always out. There was no reason for Sergi to know that these steps were ever out or to anticipate that they were out on this particular occasion. It appears from the photographs offered in evidence that these steps with a four-inch tread, very thin and of the same color as the car would hardly be visible unless particularly looked for.

It is admitted by the appellant that negligence on the part of Sergi could not be imputed to appellee, Worth, a fellow employee and it is unnecessary that we further labor that point. Appellant relies strongly on the case of United Railways & Electric Co. v. Fletcher, 95 Md. 533 , 52 A. 608 . In that case the plaintiff was laying a water pipe in a trench in a street along the track of defendant’s street railway. The trench was about three feet from the nearest track.

When the cars passed, plaintiff and other workmen had stood in safety on the strip of ground between the trench and the track. At the time of the accident the workmen were filling up the trench. A car approached and while the plaintiff was standing between the track and the trench he saw the conductor on the footboard, which ran along the side of the summer car. It was a well known fact that the foot board was narrow and that the conductor in order to pass along it in safety, if he had to lean in between the successive seats to collect fares, must in passing by the upright