Dashiell v. Jacoby

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment for $10,000 obtained by tbe appellee (plaintiff) against the appellant (defendant) for damages for injuries sustained by the former by reason of the alleged negligence of the latter in running his automobile at the corner’ of Park Heights Avenue and Spring Hill Avenue, in the City of Baltimore. At the place of the accident', Park Heights Avenue runs northerly and southerly, ³³² and Spring Hill Avenue crosses it at right angles. The United Railway Company had two tracks near the center of Park Heights Avenue.

There were T-rails on the tracks a.t thait place. P'ark Heights Avenue was a wide street and Spring Hill Avenue was about thirty feet wide, and had no street ears on it. There was a hedge running along the side of the trades between them and the paved way on Park Heights Avenue. At the time of the accident the plaintiff lived on the east side of Park Heights Avenue, at Ho. 3807, the bed of which street, from the hedge to the sidewalk, is twenty-one feet on that side and twenty-feet on the other side of the tracks.

The plaintiff lived in the fourth house, or second double house, from the corner. There is a platform along the tracks on the east side, just south of Spring Hill Avenue. The motorman described the platform as being from two and a half to three feet wide, and sixteen to eighteen feet long, running parallel with the track. It was long enough to take in both ends of a street ear.

The defendant testified that it was between three and four feet wide. It was made of cinders, hut had a cement coping around it, and was four or five inches above the bed of the street. The night of the accident (about 10.30 P. AL) a north bound car stopped south of Spring Hill Avenue to take on and to let off some passengers. Two' passengers got on from the platform at the rear of the car, and the plaintiff and three ladies got off at the front.

The conductor said when the two passengers got on he saw the defendant’s automobile behind the street car, off to one side and not on the track. One of the young ladies testified that when they reached Spring Hill Avenue the plaintiff, her sister, a young lady from Atlantic City and witness stood on the platform of the car in that order, waiting for the motorman to open the door. The plaintiff stepped down and then her sister. The latter said she followed right after the plaintiff, and as she was about to step down, before she had a chance to put her foot down, she heard the thud.

The motorman said that the plaintiff “stepped off the car and he stepped down, and he ³³³ made a couple of steps or two, and the automobile struck him.” He said that the plaintiff was lying on the side of the car track, about ten feet beyond Spring Hill Avenue; that his attention was first called to. the accident by the crash; that the machine went right down the open car line, the open rail, about half way between Spring Hill Avenue and the next stop; “that the car stopped and after the crash he saw the machine continue, and he was not; going very slow;, he was going at a good rate of speed, twenty-five or thirty miles an hour.” The plaintiff said: “I made a step'off the street oar that way, as far as I could when the automobile hit me; presumably the automobile. I didn’t know what had hit me.” Again he was asked: ■ “Did yon step on the cinder path or the bed of the street? A. The cinder path. Q1.

How did you get off the cinder path?' A. After1 I stepped one or two steps off the cinder path I was; hit.” The defendant’s explanation was that when he noticed the street car coming to a stop that the front part of his car1 was about the rear platform of the; street car, and that his automobile reached about the front platform of the street oar, about the same time the car stopped; that he lessened his. speed as he came to Spring Hill Avenue, when he was going about fifteen miles, an hour, and then described the accident as follows: “As the street car stopped, the front platform opened and Mr. Jacoby jumped, from, the street car across the safety zone and ran diagonally across; 'Spring Hill Avenue-, as I noticed, him coming T swerved my car to the left, thinking he would run past, but as he got. in front of the oar he stopped and turned towards -my car — I overlooked something; — as he jnmped from the; car, the street oar, he had Ms head turned towards the street car, as, if speaking to some one on the, car; as lie got in front of my machine, I swerved my car to. the left, to avoid him, thinking; he would run past and T would miss him that Way; hut ha stopped and turned facing my car, and, I struck the; young man and he fell in a ditch between the track and the hedge ; as I continued, T noticed I was making for a trolley pole, and in order to. ³³⁴ avoid hitting the trolley pole, I turned my car to the right, on to' .the tracks and then endeavored to get off the tracks, hut on .account of the T-rail setting up above the tracks I had some difficulty in getting over; in fact, I could not get over it at that time without talcing too much time, and I stopped the machine and ran back to the young man.” He said that “when he (plaintiff) started diagonally across the street he was running; that the front part of the radiator hit the plaintiff; that he had no bumper on his ear; that the plaintiff stopped about in the center of Spring; Hill Avenue and he turned his car to the left to avoid striking him * * * that when he turned to the left he went up on the car track, as there was¡ no 'hedge at that point; that his car went up< on the tracks, and to avoid hitting a street car pole he turned north on the tracks; that he was. straddle the west, rail of the north bound track; that he supposes he went up< the track 100 feet, trying to work his way off the track, and that this would be nearly half way to the next avenue.” The lady whom the defendant married after the accident was with him, and she corroborated his account of the accident. The motorman testified in chief “that his car stopped and after the crash he saw the machine continue; and he was not going very slow, he was going at a good rate of speed, twenty-five or thirty miles an hour.” On crossrexamination he said he could not tell how fast he was going’ down the track, and that he must have slackened, but said that when he hit the young man he was going twenty-five or thirty miles an hour. He said he could not say how fast he was going on the trade, and this appears in his. evidence in the record: “Q. How fast ? Was he going fast ?' A. I could not say.

Q. Whether two, five or ten miles an hour, you cannot tell ? A. I could not tell; when he hit him he must have been going more than 18 miles an hour or he would not have gone that far before he stopped. Q. That is your judgment, but you cannot tell us how fast he was going when he got on the car track? A. Ho, I could not tell you.

Q. When you say 25 or 30 miles an hour did you have an opportunity to observe ³³⁵ tbe rate at which the automobile was going before it bit him, ? A. Wo, sir. Q. You did not have an opportunity to observe tbe speed of tbe automobile before it bit him., did you ? A. Wo, sir.

Q1. What make you say it was going; 25 or 30 miles an hour then? How1 could you tell the jury it was going 25 or 30 miles an hour? A. If a roan was, only going 18 miles, an hour I do not think he would go over three-quarters of a block before he could stop his car.

Ql Is that your only reason ? A. Yes, sir.” The defendant then made a motion to strike out the testimony of the witness as to the speed of t-he automobile at the time of the accident,. That motion was overruled, and the ruling is presented by the first hill of exceptions. There could he no doubt that that was not a sufficient reason for him to base his, evidence on as to the speed at the time of the accident.

It was not evidence; but argument, and it was argument which was entitled to but little consideration. The defendant could not well have gone any thing; like twenty-five .or thirty miles an hour along the railroad tracks, with cross-ties, ballast and T-rails on it, hut the witness, excluded from his, calculation the reason that the defendant after-wards gave for going so far — that is to, say, in his effort to g,et out of the track, over1 that .sort of rail. He might well have sought for some place to get over the rail, or have gone some distance in trying to get over. Mr. Eleischman, a witness for the plaintiff, who lived at Wo. 3938 .Park Heights Avenue, said: The first thing he saw was rather1 a, subdued crash of some kind, which caused him to turn and look towards the car tracks; lie saw the automohile going1 up the car tracks, bouncing along the ties, tlie track at that point is not as they have it in the city, hut somewhat similar to the railroad tracks.

If the evidence of the motorman had been based on testimony showing that the defendant was going so fast when the accident occurred that he could not stop his car on the street until he went over three-quarters of a block, it might have been said to be some reason for fixing tbe speed be did, but in ³³⁶ the first place, not only the defendant, hut Messrs. Bobinson, Friedman and Elei-sehman, plaintiff’s witnesses, spoke of the car going about half a block — not “over three-quarters of a 'block- before he could stop his car,” as the motorman said. His testimony was pure guesswork, based on false premises. There is no doubt about the'admissibility of evidence in reference to speed, .and motormen ought- to he good judges of it, but when a, witness, whether he is a. motorman or somebody else, gives as .a reason for his opinion of the speed, such testimony as the motorman gave, his opinion, based on such false and unreasonable assumption of the facts, should not he permitted to remain in testimony.

While an intelligent jury ougjit not to be influenced by such testimony, they were liable to he confused, and might well have understood that the motorman was basing his evidence on the speed as of the time of the accident and was relying on what he saw at or about the time the car passed him. Indeed his evidence was in answer to this question: “You tell the jury when you saw him going down the railroad track he was going at the rate of twenty-five to thirty miles an hour ? A. I said when he hit the young man; I din’t say when he was going down the track.” Just as soon as it became apparent that the motorman was basing his evidence on what he said he did, it should have been stricken out. The motion to strike out the evidence was properly made when the motorman said that his only reason for fixing the speed at twenty-five or thirty miles an hour was “that he would go> over three-quarters of a block before he could stop his car.” Of course the trial court ordinarily has large discretion as to whether to strike out evidence already admitted, hut that discretion is not