Cumberland & Westernport Transit Co. v. Metz

Suoait,’ J., delivered the opinion of the Court. We have here two appeals in one record, one by each of two defendants, from a joint judgment against them in favor of the plaintiff, appellee, in which the defendants assail each other much more vigorously than they resist the. cl aim of the plaintiff. The plaintiff was seriously and permanently injured while a passenger on a motor bus of the Cumberland & Westernport Transit Company, one of the appellants, as a result of a collision of the bus with the American Oil Company’s truck, and each of the appellants contends that it was the other’s fault, the oil company also contending that there was such contributory negligence on the part of the plaintiff as would preclude a recovery by her against it. There are thirty-six exceptions in the record, of which the last six are to the rulings on the prayers, and the others, excepting a motion to withdraw a juror and continue the case, to rulings on the evidence.

It may help to avoid confusion if all the prayers are reported, and this the reporter is requested to do. The transit company’s first prayer asked for an instructed verdict on the ground that no legally sufficient evidence has been offered against it, and the truck company’s second prayer asked a verdict because of the uncontradicted evidence of the contributory negligence of the plaintiff, and it is, therefore, necessary to review the facts in order to ascertain whether ⁴³⁶ there is any legally sufficient evidence against the transit company, and whether the plaintiff contributed to the accident to such extent as to justify a directed verdict against-her as to the oil company. On the night of December 16th, 1927, about 7.45 o’clock, the plaintiff became a passenger on a public motor bus of the Cumberland & Westernport Transit Company at Frostburg, Maryland, to be carried over the state road to Lonaconing, a distance of eight miles in a southwesterly direction, where she resided. About midway of the distance, at the first curve in the road above Ocean Mines, the bus collided with a Chevrolet truck of the American Oil Company, with the result that the plaintiff, appellee, was so seriously injured that no contention is made by either defendant as to the nature and extent of her injuries.

The plaintiff was seated on the left side of the bus, the second seat from the driver, Thomas Martin, who operated the car from the front seat on the left. On the first seat immediately behind the driver all the way from Frostburg to the scene of the collision was a Miss MacMillan. Harry E. Minnicks, the driver of the American Oil Company’s truck, who had been as far as Keyser, West Virginia, was on his way home to Cumberland on the same state road by way of Barton and Lonaconing, when his truck and the bus met at Ocean, eight miles from Barton, four from Frost-burg, and four from Lonaconing. Both the bus driver and the truck driver contend and swear that the other was on the wrong side of the center of the road, and each of them swears that he, himself, was on the right side of the center of the road.

The collision occurred at a sharp curve, the bus being on the outside of the road and the truck on the inside. The concreted part of the road is approximately twenty feet in width, four measurements on the curve twenty feet apart showing respectively twenty feet three, four, and five inches, and one nineteen feet three inches. On the inside of the curve the space from the concrete to the bank rising on the right going to Frostburg varies from twenty inches to three ⁴³⁷ feet; on the other side it varies from three and a half to eight feet from the concrete to the edge of a steep hank. The bus was ninety inches in width, the trnek eighty-four inches.

The truck driver testified: “I was running along, rounding the curve, and as I hit the apex I spied a light. The glare coming showed away over on the other side and I kept in to my right around the curve as close as I could get on account of the embankment, the rocks which stick out, and driving a stake truck, with a few inches overhang sticking out, you have to be careful — not a very nice truck to drive on that account — I got over as far as I could get and as I cut around on what I call the peak of the curve I spied the bus which I judge was running about twenty or more. I saw he was over on the center of the road and I didn’t have space to make it without I would run into the rocks, so the first thing I did I grabbed the emergency and applied my brake and by that time the crash came. When I first saw him he was over on my side of the road, what you would ordinarily call ‘hogging’ the road.

There was no chance for me to get off at all to the right of the road. If I would get off to the right of the road I would probably take chances of upsetting my truck in front of the bus. Looking at the pictures handed me the one marked ‘To Erostburg’ and the other marked ‘To Lonaconing’, I have marked both of them with a round mark with a cross in it to show as nearly as I can where the accident- actually occurred. At the point I speak of as the peak of the curve and immediately to the right of me and on my side of the road there is a rocky embankment.

As I was rounding that curve I kept as far to the right as I possibly could. At no time prior to the actual happening of the accident did I get over beyond the center of the road. When I first saw the bus he was right in the center —what any one nearly would call hogging the road, that is, he didn’t leave enough room for me to pass. “(Court): Well that isn’t the question. Where was he?

A. He was in the center of the road. Riding the center of the road. He was riding practically the center of the road. He ⁴³⁸ didn’t give me room enough to pass.

Half of the bus was on my side of the road.” This is the only evidence which places the bus or any part of it on the left of the center of the road. “All vehicles, motor, horse-drawn or otherwise, when being driven upon the highways of this state upon meeting others, shall turn to the right of the center of the highway so as to pass without interference.” Acts of 1920, ch. 506, sec. 163; Code, art. 56,.sec. 209 (since the accident amended by Act of 1929, ch. 224). There is no liability unless the act constituting the violation of the law is a proximate cause of the injury. Greer Transportation Co. v. Knight, 157 Md. 528, 538 , and cases there cited. In this case, if the testimony of Minnicks be true, there would have been no collision if the bus had been on the right of the center of the road.

But, says the transit company, “In the face of the testimony of the witnesses as to his condition and as to the manner in which the accident happened, his testimony is incredible and unworthy of belief.” There is testimony of several witnesses that Minnicks was under the influence of intoxicating liquor. He himself says he was not. He stopped at a garage in Barton, six or seven miles below Ocean Mines, about seven o’clock, and remained there twenty to twenty-five minutes, and in about half an hour he was in the wreck. He said he had taken a drink of “moonshine” whiskey about four o’clock at Keyser, W. Va., out of the bottle found in his car after the collision, which belonged to Spiker, his helper, and took another drink just after leaving the Barton garage.

The testimony of three witnesses who saw him at Barton was that he was sober, and this is not contradicted, and, so far as the record shows, if he became intoxicated, it was after he left Barton. Immediately after the accident he went to the house of Timothy Kilduff, a manifest clerk of the Consolidation Coal Company, who testified: “Mr. Minnicks used the phone and reported the accident to the state police and also to Mr. Shaffer. (Mr. Shaffer is the local manager of the American Oil Company.) He used the telephone several times * * * I would say he was in my home an hour at least. * * * I heard him use the ⁴³⁹ name of Gearhart or Gephart. (Gearhart was the name of the state police sergeant.) He was asking for them and he was talking about the accident- and asking for somebody to come and look at it before it was cleared up.” Asked as to the condition with reference to sobriety, Mr. Kilduff said: “Well, I couldn’t see anything to lead me to think that there was anything wrong with the man, only he was very anxious to report the accident.” He also said: “He did not stagger at all.” The state police charged Minnicks with driving a car while intoxicated, he was found guilty and took an appeal, which, on advice of his counsel, was dismissed.

It is apparent, therefore, that there is a real controversy as to whether Minnicks was drunk or sober at the time of the accident, and that it would be passing on tlie weight of evidence and the credibility of a witness for this court to say as a matter of law that the testimony of such a witness has no probative force. As said in State, use of Steever v. Union R. Co., 70 Md. 69 , 77: “It has been held in this state, as an axiom of the law, ever since the institution of courts of justice, that it is the exclusive province of the jury to decide on the credibility of witnesses and to determine the weight of testimony.” In addition to this, there is evidence, which will be hereafter considered, that the bus driver was not driving with that degree of care which his employment as the driver of a public bus required. But, says the transit company, “If * * * the bus 'was traveling astride the center of the highway, and he could not pass it with his truck, there would have been a head-on collision.” It must be remembered that the only witnesses who. swore positively to the respective positions of the bus and truck with reference to the center line of the road were the two drivers, and each of them testified that he was not across the line. This collision did not happen on a straight road; it was on a sharp and dangerous curve, the bus on the outside, while the truck was oil the inside, so that they were approaching each other at an angle.

The result was what railroaders call a “side swipe,” and t-hev occur in just such places as this'. The damage to the bus was on the left side, from ⁴⁴⁰ about the second seat to the rear. William H. Shaffer testified as to the condition of the truck: “There was not a whole lot of damage done to the right side. I really did not see any damage at all to the left side.

The only damage was to the corner of the left side where they collided. I don’t think the front part was struck at all by the collision. * * * There was some slight damage to the fender and, I believe, the steering apparatus. * * * It is a Chevrolet ton truck, with a stake body; just had sideboards with little racks. The tires on the truck were in good condition.” The fact that the steering gear was damaged would cause the driver to lose control of the truck, and its position when it upset would furnish little or no information of its location at the point of the collision. The steering gear of the bus was not damaged.

The point of impact on the bus being to the rear of the steering gear would account for the driver’s control of the bus after the collision. We are therefore of the opinion that we cannot draw any inference, as a matter of law, from the relative positions of the vehicles after, the collision, in view of the contradictory evidence of their locations at the time of contact. The transit company has cited several eases in support of its contention that the testimony of Minnicks should be rejected as having no probative value, the most recent citation of the transit company being Gitomir v. United Rys. Co., 157 Md. 464 , where it said: “The testimony of the witness that she looked and did not see the car must be rejected as unworthy of belief, because if a witness testified to having looked and not having seen what, if the witness had looked, she must have seen, the conclusion is that she did not look, or did in fact see the car approaching the point of the accident.” This was the case of a collision of an automobile with a street car, the latter approaching the automobile from the rear as it was turning from the curb toward the car tracks.

The same principle was applied in the other cases cited, except in the case of Title Guaranty & Surety Co. v. Poe, Receiver, 138 Md. 446 , which was an equity case, wherein on a question of fact the court may pass on the ⁴⁴¹ weight of evidence and the credibility of witnesses. Breitinger v. Heisler, 155 Md. 157, 165 . In this case the witness Minnicks stated as a fact that he was on the right of the center of the road and that the bus driver was on the center, and it was for the jury to say whether, under all the evidence, this was true, and to pass on the sobriety of the truck driver. The evidence against the transit company in our opinion should have been submitted to the jury, and the first prayer of the transit company was therefor properly rejected.

Taking up the other prayers in their order, we find no objection made at the argument or mentioned in the brief of either defendant to the plaintiff’s A and B prayers, except the transit company’s general objection that the case against it should not have gone to the jury. The first, or A prayer, lays down the rule of damages approved in Gordon v. Opalecky, 152 Md. 536, 550 , and United Rwys. & Elec. Co. v. Dean, 117 Md. 686, 701 ; and is approved here. The second, or B prayer, properly granted, defines the duty of a carrier i,o a passenger, as approved in Phila.

W. & B. R. Co. v. Anderson, 72 Md. 519 ; United Rwys. & Elec. Co. v. Hertel, 97 Md. 382, 395 ; United Rwys. & Elec. Co. v. Rosek, 107 Md. 138, 143 . The plaintiff’s C prayer is the one to which the transit company most seriously objects, and that is to the application of the doctrine of res ipsa loquitur to the facts in this case.

The transit company contends: (1) That even though the relation between it and the plaintiff was that of carrier and passenger, the plaintiff must show that the defendant by its act or by its omission has violated some duty incumbent upon it which caused the injury complained of; and (2) that the doctrine does not apply to the carrier where both agencies causing the collision are not within the control of the carrier. The duty of the carrier, the burden on the plaintiff, and the facts necessary to raise a presumption of negligence, are so well stated by Chief Judge McSherry in Western Md. R. Co. v. Shivers, 101 Md. 391, 393 , that it will hear repetition. He there said: “It is undoubtedly true that a carrier is not an insurer of the safety of his passengers. He is bound to use ⁴⁴² the utmost care aud diligence which human foresight can employ.

City Pass. Ry. Co. v. Nugent, 86 Md. 356 . This is the limit and the measure of the duty which he owes to the passenger.

If, in spite of the observance of that degree of precaution, an injury happens to the passenger from an act of God or a vis major, no action in such circumstances can be maintained. Negligence, and not the mere fact of an injury, is the foundation of the passenger’s right to recover. Direct evidence of negligence is not necessary, because negligence, like any other fact, can be established by the proof of circumstances from which its existence may be inferred. The relation of passenger and carrier being established, then, if it should appear that the accident occurred from some abnormal condition in the department of actual transportation, the law raises the presumption that the abnormal condition had its origin in, or was referable to, some antecedent or coincident omission of an imposed duty.” Inasmuch as we have, in passing on the transit company’s first prayer, in addition to the conceded fact of the relation of carrier and passenger, held that there was evidence of the transit company’s active negligence sufficient to take the case to the jury, the plaintiff’s “0” prayer should be sustained, unless the second contention of the transit company removes the presumption of negligence against it, assuming, of course, that the prayer is proper in form under the facts of this case.

The transit company’s contention is that, where the two agencies which caused the collision are not both within the control of the defendant carrier, the presumption of negligence does not arise. The authorities are not so uniform in this country that this can be laid down as a hard and fast rule. According to 5 Ruling Case Law, 79, 80, “In the case of collisions between the car of a carrier and vehicles on the street not in any way under the control of the carrier, there is a conflict of opinion, some authorities holding that the usual presumption against the carrier arises, while others take the view that in such cases the burden rests upon the plaintiff to prove negligence; and even the authorities which apply to this class of cases the doctrine of res ipsa loquitur to make out ⁴⁴³ a prima facie case, where a passenger is injured by collision with a vehicle of a third person, recognize that the circumstances of the accident or the evidence given in the case, may be such as to rebut any presumption of the carrier’s negligence.” A reference to' the cases and auihorities cited leads to the conclusion that whether the doctrine is to he applied to the carrier depends on whether it is wholly without fault, hut that it is not excused from the burden of producing evidence to show that it was not its act or omission which caused the injury. The doctrine was applied by this court in North Baltimore Pass.

Ry. v. Kaskell, 78 Md. 517 , which was a case wherein the plaintiff was injured as a result of the collision of a horse car of the defendant with a freight car of the Western Maryland Railway Company. The horse car had left the track and was hauled over the cobbles for two blocks, when it swung around and collided with the freight car, which was standing on a side track of the railroad company. There was no question there but that the negligence was that of the defendant. The rule was also applied in Jones v. United Rwys. & Elec.

Co., 99 Md. 64 , wherein a street ear was in the act of passing a wagon loaded with marble slabs, one of which projected far enough to graze the ear and injure the plaintiff, a passenger. So that in this state the mere fact that there was a collision producing the injury did not operate to take the cases out of the rule. The plaintiff’s “0” prayer is the prayer offered by the plaintiff in Pittsburgh & C. R. R. Co. v. Andrews, 39 Md. 329 , and there held defective, because it omitted the question of the plaintiff’s contributory negligence, which had been raised by the evidence. The opinion of the court said that the prayer as offered stated the law as announced in Stokes v. Sallonstall, 13 Peters, 181 , 10 L. Ed. 115 ; Stockton v. Frey, 4 Gill, 406 , and Balto. & O. R. Co. v. Worthington, 21 Md. 275 , but the prayer might have applied in these cases because there was no proof and no question of contributory negligence of the plaintiff.

The prayer as submitted here was also offered in Balto. & O. R. Co. v. Mahone, 63 Md. 141 , and, as modified by the trial court in adding the words, “or that ⁴⁴⁴ the accident would have been avoided by ordinary care on the part of the accused,” was approved. The prayer, as amended in the Mahone case, was approved in North Baltimore Pass. Ry. Co. v. Kaskell, 78 Md. 517 .

In this, case, however, the transit company does not charge the plaintiff with any negligence or want of care. The C prayer as granted in this, case was submitted in the case of Strasburger v. Vogel, 103 Md. 85 . That was a suit for injuries sustained by the plaintiff from being struck by a brick which had fallen to the sidewalk from a chimney on the defendant’s building. The opinion of Chief Judge McSherry said: “The instruction deliberately ignored the fact which the plaintiff had proved, that an independent agency had intervened and had caused the bricks to fall, and permitted a recovery upon an inference of negligence arising solely from the mere fact that the bricks fell, unless the defendant satisfied the jury that the falling of the bricks was not caused by his negligence.

If the plaintiff’s case had rested exclusively upon an inference of negligence deduced from the single fact that the bricks fell without an apparent or assigned cause; and if the defendant had, by way of answer to that theory, relied upon the intervention of an independent agency, the instruction would have been correct, because the presumption of negligence arising from an unexplained falling of the bricks would have established a prima facie case which the defendant could only have rebutted by showing a state of facts which destroyed or negatived that presumption. Between the two conflicting theories it would have been the province of the jury to pass. But when the plaintiff himself shows that the injury complained of must have resulted either from the negligence of the defendant or from an independent cause for the existence of which the defendant is in no way responsible, he cannot be permitted to recover until he excludes the independent cause as the efficient and proximate cause of the injury; and an instruction which allows a recovery without^ any reference whatever to such efficient and proximate cause is essentially misleading and erroneous.” ⁴⁴⁵ The declaration charges that it was the duty of the transit company to carry the plaintiff safely to and deliver her at her destination and to use due and proper care in the operation and management of its bus, so as to avoid collision with any other vehicle, and of the oil company so to operate its truck as to avoid collision with any other vehicle, and that, because of their failure so to do, both defendants allowed their vehicles to collide with each other and thereby produced the injuries complained of. The testimony offered on behalf of the plaintiff showed that, as against the transit company, she relied on the presumption of negligence against the transit company, the only evidence adduced by her against it being that it had not exercised the degree of care required by the carrier, because of tbe distraction of the driver on account of the attentions of and to a young woman in the seat next behind him, with whom a conversation was being carried on, and the failure of the driver, according to some witnesses, denied by him, to lower the curtain behind him to cut off -the glare from the lights inside the car, the driver testifying, “Yon can’t seo to drive if the curtain isn’t down.” Aside from this testimony, the evidence of the accident offered by the plaintiff was as to the intoxicated condition of the track driver and his negligence, the plaintiff calling the bus driver to testify on her behalf.

The plaintiff’s C prayer was good as far as it went. At the instant of the collision there arose the presumption of negligence against the transit company, from which it could only extricate itself by showing it was not in fault. The plaintiff, however, went on to show there would not have been a collision but for the negligence of the truck driver, and, offering evidence of this, she could not ask for a verdict under the C prayer, unless the question of the negligence of the oil company, its agents and servants, was also submitted, as a cause of the accident. It was a fact in evidence which could not be ignored, under the decision in Strasburger v. Vogel, supra.

The plaintiff’s D prayer, which submitted to the jury the matter