Baur v. Calic

Pattison, J., delivered the opinion of the Court. This is an appeal from a judgment recovered by George Calic, individually, and to the use of Travelers’ Insurance Company, against Charles Baur and Frank Baur, trading as Baur Brothers, and H. C. Sutter, for injuries sustained by George Calic in falling or being thrown from an automobile truck, caused, as alleged, by the negligence of the ³⁸⁹ appellants in the management and operation, by their servants, of the truck. This appeal presents the following questions: First, whether there was legally sufficient evidence of primary negligence on the part of the driver of the truck, imputable to the appellants. Second, whether the appellee was guilty of contributory negligence, as a matter of law.

Third, whether the driver of the truck was the servant of the appellants, or either of them, at the time of the accident. Fourth, whether the trial court committed prejudicial error wtih respect to the rulings on, certain evidence. It is disclosed by the record that the James McGraw Company of Philadelphia was employed by the Pennsylvania Railroad Company to prepare,, in part at least, its road between Philadelphia and Baltimore for electrification. To do this work, McGraw Company hired trucks, with a driver for each, from II.

C. Sutter, one of the appellants, at and for the sum of $1.60 per hour, or $16 a day, working ten hours. Sutter had no trucks and was obliged to hire them from others. Some of these he hired from Baur Brothers, of Philadelphia, the other appellants. He was to pay for the truck and driver the sum of $1.25 per hour.

The men employed by the McGraw Company lived in camps, along the road, which were moved from time to time as the work progressed. The camps, at times, were several miles from where the work was being done, and by the agreement of the men ■with the McGraw Company, they were to be furnished by it with transportation to and from their work. The trucks hired by the McGraw Company from Sutter were not only to be used for general purposes, but, as many of them as were needed, were also to be used in the transportation of the men; the charge therefor being the same as when used for general purposes. On the 9th day of November, 1931, the appellee, George Calic, one of the workmen, in returning from his work to the camp or his lodging place at Middle River, upon one of the trucks that Sutter had hired from Baur Brothers, was injured by falling from and being run over by the truck. ³⁹⁰ After the accident and injury, Oalic applied for and obtained an award from the State Industrial Accident Commission of Maryland for the injuries he had received.

This award and the expenses incident to the injuries caused by the, accident were paid by the Travelers’ Insurance Company, the insurer of the employer, the James McGraw Company, and this suit is now brought by George Oalic, individually, and to the use of Travelers’ Insurance Company, to recover damages against Baur Brothers and Sutter for the injuries he received. There is contained in the record the following evidence, reflecting upon the two first questions here involved: (1) Whether there was legally sufficient evidence of primary negligence on the part of the driver of the truck; and (2) was the appellee guilty of contributory negligence, as a matter of law. George Oalic, the plaintiff, an employee'of the James McGraw Company, testified that on November 9th, 1931, he, with other workmen, quit his work at the usual time, 5.30 o’clock in the evening. At the time “it was pretty dark”; that he got on the truck, near the railroad track where he had been working, to ride to his boarding house at Middle River.' He did not know who was driving the truck. “About thirty, thirty-five or maybe forty men got on the truck”; some were in the truck, others on the outside of the truck, on the footboard and fenders.

He was standing on the running'board on the left side. Two other men were on that side, sitting on “the fender and between the hood,” one facing the front and the other the rear of the truck, and the witness with his legs stretched out on the running board. When asked, “Well, how much room did you have ?” he answered, “Well, I had about room for one good foothold.” He was standing up facing the cab, with his left hand “by the door of the cab (that is, holding on to tho door or frame of the door) * * * with the right hand I didn’t have any good hold. I just supported my right hand anywhere I could, on the corner of the back of the cab. * * * It was kind of round and you could not get much hold on it, but it was ³⁹¹ pretty fair as long as the truck was running nice * * * but * * * I |ia¿ a g00¿ hold with my left hand.” When asked, “Was that the place you got on the truck when it started * * * ?” he said: “Yes, sir; that was the only place for ine to ride.” He rode in this position for a distance of about two and a half miles.

When about to get on the truck, the driver said: “Come on boys, come on, I ain’t going to sit here and wait for you fellows all night here. * * * 1 had never ridden on the running board before and I never heard the chauffeur say anything about riding on the running board.” When they got near Eastern Avenue, “we stayed there and waited for this other truck that was coming from the other direction — from Chase.” When it came, he thought, if there was room, he would get in it; but there were other men there, and as “soon as the other truck come they loaded” on it. “It was just as many men as the truck I was on.” There were men on the running board of that truck. Had there been none on its running board, he said: “I would change my place * * * and he alone on the running board of that truck. * * * Other than riding in this truck (the one he was in) or the one that met it at Eastern Avenue, there was no other truck that I know of to bring the men back to their homes.” The two trucks then, he stated, started down towards Middle River. When they reached the place where the truck driver always stopped and “where I was to get off * * *, he didn’t stop. He went on over this spot and I hollered at him twice to stop, and at the same time I changed my position, my foothold, getting ready to get off and he swung to the right, swerved to the right, made a kind of jerk, I couldn’t tell you what, because I am not a driver.

I couldn’t drive a truck. * * * This was right after I called the second time to stop that he made that swerve to the right,” and “I lost the grip after he made that jerk. When he swerved the truck and gave the jerk I slipped off that quick and find myself under the wheel, the back wheel on the left side.” He could only see the driver when getting on the truck. He could not see him after that time. “I just had enough space on that running board to squeeze both of my feet on the back hand ³⁹² (end) of the running board.” Qr You changed your foot-bold? A. Yes, sir.

Q. What do you mean by that? A. Well, now I am standing here (indicating) standing up facing the cab and as I said, I just had enough room for both feet, and after I hollered at him twice to stop I tried to turn myself kind of to the left to face forward.” He was asked on cross-examination: “Didn't you then jump ? A. Ho, I didn’t.” The effect of the jerk, as he stated, was to' break the grip of his left hand upon the car, and it was then that he fell off and the wheels went over his leg. Other witnesses testified, corroborating the evidence of the plaintiff as to his position on the running board and also as to the swerving or jerking of the car; one or more of them testified that they had difficulty, because of the jerking or swerving of the truck, in maintaining their positions or remaining on the truck.

Stephen Klasanovich, in describing the movement of the truck, said: “He (speaking of the driver) give such a jerk * * * so pretty near I fall myself, but I was on the right side running board, * * * but the turn was so- quick on the right side with a big jerk.” Unlike the plaintiff, who was on the left side of the truck, the sudden turn to the right would have had the effect of throwing him (the witness) against, and .not away from, the truck. Witness further testified that there was no room for any one to get on the second truck, which they met at Eastern Avenue, and these were the only two trucks furnished, on that occasion at least, for the transportation of the men. Louis Kardnovich testified that “the truck was slowing a little bit, and he go- ahead quick and after that I heard somebody cry out loud.” Burkins, the driver of the truck, testified that he did not know Calic, the plaintiff, and could not say whether he rode in his truck before that night or not. When he got on the truck on the night of the accident, he asked to be let off at Middle River.

He heard “somebody holler there was a man fell off,” and he went back and found that he had run over the plaintiff. At the time he was slowing down to let him off. “I beared off to the right, I didn’t cut short or nothing ³⁹³ like that — beared off like I was going to stop, when someone hollered stop,’ or somebody fell off. * * * There were between twenty and twenty-five men on the truck that night. It was a two and a half ton truck with a dump body.” “Whether Calie was on the seat, on the running board, or on the truck, I couldn’t say. On the side of the truck, I mean.

He wasn’t there when we left at the job. When Calic told me he wanted to get off at Middle River, he was standing on the ground on the side of the truck. I told him to get back on the other truck, there wasn’t room here. Whether he got on or not-1 couldn’t say.” Philip Libertini, a witness called by the defendants, testified he was sitting up beside the driver; if so-, he was on the right of the driver.

He saw Mike Milosinovich, who was seated on the tool box upon the left side running board, and he also saw an Italian fellow, sitting on the running board ahead of Mike, and: “From where I was sitting I could see George out on the running board. He was upon the left side. * * * I think the driver sees the other fellow (George) because he told him to- get off the truck and get on the other truck. * * * The driver was sitting right alongside of me and he was closer to these men than I was.” Other evidence was offered by the defendants as to the happening of the accident, including the alleged jerking of the truck, and the conduct and position of the plaintiff upon the truck; but this evidence, though tending to contradict the plaintiff’s evidence, is not important in determining the questions under consideration, that is, whether there was primary negligence on the part of the driver of the truck, legally sufficient to go to the jury, or contributory negligence on the part of the plaintiff as a matter of law, for in the determination of those questions we must assume the evidence of the plaintiff to be true. First, as to the question of primary negligence: There was, we think, enough evidence to carry the case to the jury. These men were to be provided with safe transportation to and from their work.

This transportation was by means of trucks. It is shown that the men were permitted.to take their posi ³⁹⁴ feus in the body of the truck until it was filled, and thereafter to crowd into the cab of the truck with the driver, and to ride upon the running boards and fenders of the truck, until it would hold no more. This was not only true so far as the occasion upon which the plaintiff was injured, but also on other occasions, and this was known, not only to the driver, but also to those whose duty it was to provide a sufficient number of trucks to enable the men to ride thereon in positions of safety. The practice of allowing the men to ride upon the trucks in the manner stated necessarily increased the dangers of their travel, and, because of such fact, there was imposed upon the driver a corresponding increase of care in the performance of his duty in the operation and management of the car.

That which is said to have caused the accident resulting in the injury to the plaintiff was the failure of the driver to slow down in time to stop his truck at the point where he was asked to stop it to let off the plaintiff and others, which necessitated stopping it more suddenly than otherwise would havé been necessary, and, at the same time, causing him to turn more suddenly to the right of the road in order to allow those upon the truck to alight therefrom in safety. The sudden stopping and turning omswerving to the right of the road produced what is described by the plaintiff’s wit-^ nesses as a “jerk,” “a violent jerk,” or, as one said, the turn was made “so quick on the right side with a big jerk.” It is true that the defendants’ witnesses described the movement complained of as not amounting to a jerk, but only a “bearing off” to the right. The defendants have cited a number of cases wherein it has been decided by this court that recovery can be had for injuries caused by the motions or movements of a street car, where such motions or movements are unusual and extraordinary, but not for movements that are usual, ordinary, and incident to its operation. State, use of Charles, v. United Rys. & Electric Co., 101 Md. 183 , 60 A. 249 ; Dawson v. Md. Elec.

Ry. Co., 119 Md. 373 , 86 A. 1041 ; Callis v. United Rys. & Elec. Co., 128 Md. 406 , 97 A. 715 ; Hagerstown & Frederick Ry. Co. v. State, use of Cunningham, 129 Md. 318 , ³⁹⁵ 99 A. 376 ; Brocato v. United Rys. & Elec.

Co., 129 Md. 572 , 99 A. 792 ; State, use of Chima, v. United Rys. & Elec. Co., 162 Md. 404 , 159 A. 916 . The cases in which recovery may be had under this rule is where the injury complained of resulted from the negligent operation or management of the car by the company’s servant, or where the company itself has allowed its property, consisting of the roadbed, rolling stock, etc., to get out of repair or in a condition causing the injury for which suit is instituted; and not from any movement, usual, natural, and incident to the operation of the car. These cases, we think, differ materially from the case under consideration.

Here, the act complained of was not caused by any alleged defect in the truck, nor -was