East Coast Freight Lines, Inc. v. Mayor of Baltimore

Collins, J., delivered the opinion of the Court. These cases involve appeals in suits against the Mayor and City Council of Baltimore, (the City), where demurrer prayers of the City were granted and judgments entered in its favor. The appeals are taken by East Coast Freight Lines, Incorporated (East Coast) ; State of Maryland to the Use of Maxine M. Gretsinger, Widow, et al.; State of Maryland to the Use of Anna S. Schoblocher, (now Amstutz), et al. East Coast also appeals from the refusal of the trial judge to grant a directed verdict for East Coast in the suit against it by State of Maryland to the Use of Maxine M. Gretsinger, Widow, ²⁶³ et al., resulting in a judgment in favor of the Gretsingers. Where demurrer prayers are granted we must state the facts in a manner most favorable to those against whom the rulings were made.

Peter T. Schoblocher leased the tractor-trailer owned by him to East Coast under a leasing agreement which began at one o’clock P. M. on July 26, 1945, and expired at six o’clock P. M. on July 28, 1945. The East Coast had authorization from the Interstate Commerce Commission for the transportation of cargoes over Routes 1 and 40 through Baltimore City. Its usual route was on Route 1 to and through Baltimore in order to go by the East Coast Terminal, which was at Albemarle and Granby Streets. Schoblocher operating the truck for the East Coast had made approximately thirty-five trips for East Coast from Richmond to New York City and return.

The first trip was on February 3, 1945. Prior to July 26, 1945, when the accident happened, the last trip was on June 21, 1945. He made no trips between June 21, 1945, and July 26, 1945. Schoblocher left Richmond, Virginia, about six o’clock P. M. on July 26, 1945, for New York City operating his tractor-trailer, leased to East Coast with a load of about 21,000 pounds which consisted largely of cellophane and seventeen drums of sizing in bulk.

About one o’clock A. M. on July 27, 1945, the weather being rainy and drizzling and the night dark, he was driving on Washington Boulevard in Baltimore City. In the tractor-trailer with him was one Vernon M. Gretsinger, a member of the Armed Forces, who got in the tractor-trailer somewhere between Richmond and Baltimore. When Schoblocher reached Catón Avenue, according to the testimony of Roland Shaw, who was operating his own truck and flat trailer immediately ahead of Schoblocher, there was a. detour sign which read: “Use Wilkens Avenue”. The detour sign was placed there because a bridge on Washington Boulevard was officially closed to traffic beginning on July 5, 1945, to divert traffic and ²⁶⁴ send it north on Catón Avenue.

Schoblocher at the detour sign, stopped a few moments and turned on Catón Avenue and proceeded north to Wilkens Avenue. He turned and proceeded east on Wilkens Avenue. Wilkens Avenue is a public highway of Baltimore City and east from Catón Avenue was 54'2" wide from curb to curb and gradually widened to 60'1" in width until it intersected with an alley. At the point where it became 60' 1" in width between curbs there was a grass plot in the center approximately 5'11" wide.

The grass plot was surrounded by a concrete curb of from 42/2" to 5" high. Each lane of Wilkens Avenue, where the grass plot was located in the center, was 27'1" in width. The surface of the bed of Wilkens Avenue was •covered with black material and the curbs were constructed of reinforced concrete of a whitish or grayish color. Inside the grass plot at a point about three feet from its west end and in the center thereof was erected a metal lamp post about sixteen feet in height attached to a heavy concrete base.

From this first lamp post east the same type of metal lamp post was spaced at regular intervals of about 180' apart to the end of the center plot at Bentalou Street, a distance of five or six blocks. The grass on the plot was green and the metal pole was painted green. There is evidence that at the time of the accident in this case there were no warning signs, shields, barriers, or any other warning device at the west end of the grass plot or on the lamp post erected within three feet from where the grass plot started. There had been storms of extreme intensity in Baltimore City that evening.

The Consolidated Gas, Electric Light and Power Company of Baltimore City (Gas Company), who contracted with the City to maintain service on the lights in the grass plot, had 373 cases of trouble in the City and vicinity that evening. At about 9:52 P. M. on that night, (July 26, 1945), all of the lights along Wilkens Avenue, including that on the first lamp post at the west end of the center plot, had gone out on account of the storm. At 12:58 A. M. on July 27, 1945, Balder- ²⁶⁵ son, a service man in the employ of the Gas Company, was sent out to repair the lights on the poles in the grass plot on Wilkens Avenue. He parked his truck on the south side of Wilkens Avenue and entered a saloon on the corner and was in the process of calling the Gas Company for the purpose of requesting a low power test on the circuit when the accident happened.

The lights were not on at the time of the accident. Beginning at the westerly end of the grass plot at the north and south edges thereof, were painted two white lines forming a V which ran westerly for a distance of about thirty-two feet. This V had been repainted and replaced in May, 1945. From Catón Avenue to the point forming the V was a white painted line in the center of Wilkens Avenue which had been repainted on July 26, 1945.

The plans and specifications of the grass plot in the center of Wilkens Avenue were approved by the State Roads Commission, the City of Baltimore, and the Public Works Administration of the Federal Government. After the completion of the work there was a joint inspection by the State Roads Commission and the Highway Department of Baltimore City and the work was approved. Roland Shaw testified further that he could see the headlights and clearance lights of the East Coast truck in his rear view mirror. East Coast truck was not going over twenty-five to thirty miles an hour.

Shaw said that immediately before the accident the East Coast truck was right in the middle of the street which was soaking wet and he could not see any lines in the street. He had been using the Wilkens Avenue detour for approximately six or seven weeks. He could see the East Coast’s lights just about in the middle of the right hand lane. He did not see any warning signs on the pole the night of the accident.

Shaw further said that the East Coast truck was right behind him and in the middle of the right hand lane, “a little out from me which would put him in the middle of the street.” The East Coast truck was not on the wrong side of the street. When he approached the grass plot in Wilkens Avenue, he ²⁶⁶ pulled to the fight to go around it but the East Coast truck did not pull to the right. He could see the lights of the East Coast truck and the truck was a little bit off to one side of him. He was watching in the mirror to see if “he did pull in and he did not.” He saw East Coast’s lights jump up in the air which meant he hit the grass plot and a fraction of a second later there was a terrific explosion.

Shaw was about three hundred feet east of the west end of the grass plot when the accident happened. Shaw then seeing the accident, stopped his truck and went back to look at the grass plot, the scene of the accident. He could see where the truck had hit the grass plot by the marks on the road which showed that the left wheel had hit the curb first. . Mr. Jesse J. Hyatt testified that he traveled Wilkens Avenue twice a day and was following the East Coast truck at the time of the accident and was about two truck lengths behind it.

East Coast truck “hung to” the middle of the road all the way in Wilkens Avenue. Hyatt stayed back because he figured East Coast truck would have to pull over where the street narrowed. When he saw East Coast truck was not going to pull over he stayed much behind it. The East Coast truck hit the curb, then hit the lamp post, “jack-knifed”, and shot across the grass plot.

Another tractor-trailer owned by Elmer D. Willis and operated by Lorenzo Lewis, Sr. was proceeding westerly along Wilkens Avenue. The East Coast truck continuing across the grass plot to the west bound lane collided with the Lewis tractor-trailer. A fire then resulted. Schoblocher and Gretsinger on the East Coast truck were killed.

Lewis died as a result of the accident and Brady Gillikin, who was riding with Lewis, was injured. Mr. M. H. Pisani, Assistant to the 'Superintendent of the Electric Distribution Department of the Gas Company, testified that the Gas Company had notified the City of seventeen previous accidents at this west end of the grass plot on Wilkens Avenue at night when the light pole was damaged. ²⁶⁷ Walter T. Tome testified that he was head of street lighting in Baltimore City in 1945 with the title of Junior Associate Engineer. He did not himself decide where a light pole was to be placed but made recommendations to the Mechanical-Electrical Engineer. He had been with Baltimore City for thirty-one years in the Lighting Division and he was familiar with all the work pertaining to street lights.

He said that the City had received notices from the Gas Company of damaged electric light street lamps. At the west end of the grass plot on Wilkens Avenue damages had been reported to the street lamp on eighteen previous occasions. Those reports were received from one to five days after repairs were made. Those reports did not give any particulars surrounding the damaging of the pole, did not show whether the damage was caused by motor vehicles but merely showed that the pole was damaged and repaired.

He testified further that the Mechanical-Electrical Engineer of Baltimore City designated the color of the electric light poles. The court properly excluded a proffer made by East Coast of testimony from Mr. Tome that the lamp post at the west end of the grass plot on Wilkens Avenue was designated as a dangerous pole by his department. This evidence was properly excluded because the testimony of the witness did not support the proffer. The court also properly excluded testimony of this witness that it was the practice of the City to put a red warning sign at the head of center parkways in the City to show where they begin, and also why this particular pole was not striped.

This evidence was properly excluded as the witness’s duty was confined to the street lighting of Baltimore City and he could hardly be qualified to state a practice of the City in regard to placing warning signs and the color of the poles. East Coast endeavored to offer in evidence the manual of Traffic Control Devices issued by the State Roads Commission of Maryland. Under the provisions of Chapter 1007 of the Acts of 1943, Code (1943 Supplement), Article 66%, Sections 137, 138, and 139, the State Roads ²⁶⁸ Commission was ordered to adopt a manual and specifications for a uniform system of traffic control devices upon highways in the state and was directed to place and maintain such traffic control devices conforming to its manual. The Act further provides that all such traffic control devices hereafter erected shall conform to the state manual and specifications.

Mr. Ezra B. Whitman, Chairman of the State Roads Commission, through 1944, said there were a great many regulations which would apply in the country that would not apply in the City. He said he believed the manual was sent to the twenty-three counties and Baltimore City. After the manual was distributed there was no general replacement of old traffic control devices by conforming to the manual with new traffic devices. The manual applied to new signs erected after 1943.

Mr. Whitman further stated that there was still a great diversity in Maryland in 1945 as to signs and there was not any general replacement of old traffic control devices with new ones. We agree with the trial judge that under this testimony, the State Roads Commission’s Manual was properly excluded from evidence in these cases. Suits were originally filed against East Coast only, by Elmer D. Willis, et al., the owner of the tractor-trailer; by the State of Maryland to the Use of Eunice Lewis, Widow, et al.; State of Maryland to the Use of Maxine M. Gretsinger, Widow, et al.; and by Brady Gillikin. After the filing of the original declarations, East Coast filed Third Party Complaints against the Gas Company and the City.

The Gas Company and the City demurred to the Third Party Complaints. The demurrers of the Gas Company were sustained while those of the City were overruled. On appeal to this Court the sustaining of the demurrers of the Gas Company were affirmed on December 13, 1946, in the case of East Coast Freight Lines, Inc. v. Consolidated Gas, Electric Light & Power Co., 187 Md. 385 , 50 A. 2d 246 . East Coast then amended its Third Party Complaints by striking out the Gas Company as a Third Party De ²⁶⁹ fendant.

Subsequently, the plaintiffs in each of the aforesaid original cases filed amended declarations naming as original defendants, East Coast and Mayor & City Council of Baltimore, (the City). After the sustaining of the “B” and “C” demurrer prayers of the City in the cases of Willis, Lewis, Gretsinger, and Gillikin, supra, those four cases went to the jury against the defendant, East Coast, and verdicts were returned in favor of three plaintiffs as follows: State of Maryland to the Use of Eunice Lewis, Widow, and children, $25,000.00; Brady Gillikin, $36,000.00; Elmer D. Willis, et al., $3,982.42. Motions for new trials were denied and judgments in the respective amounts entered against East Coast. After-wards a settlement of these three judgments was effected by East Coast paying to Brady Gillikin, $28,000.00; to Eunice Lewis, Widow, and children, $22,000.00; and to Elmer D. Willis et al., $3,500.00.

East Coast simultaneously received from these three plaintiffs joint tortfeasor releases, each of these releases intending to reserve unto East Coast its rights and claims for contributions against the City as a joint tortfeasor. The judgments totaling $64,982.42 having been settled for $53,500.00, the claim of East Coast for contribution against the City as joint tortfeasor extends to one half of $53,500.00. In the Gretsinger case the Court reserved its ruling on the East Coast’s motion for a directed verdict and a verdict was returned against East Coast in the amount of $10,000.00. A motion for judgment non obstante veredicto (N. O. V.), was denied in favor of East Coast, leaving the judgment in the amount of $10,000.00 against East Coast.

A suit was also entered, State of Maryland to the Use of Anna S. Schoblocher (now Amstutz), surviving widow of Peter T. Schoblocher, against the Gas Company and the City, but not against East Coast. The demurrer of the Gas Company was sustained. East Coast Freight Lines, Inc., v. Consolidated Gas, Electric Light & Power Co., supra. The Schoblocher case was tried, and in con ²⁷⁰ junction with the Willis case, the Lewis case, the Gretsinger case, the Gillikin case, the demurrer prayers, “B” and “C”, supra, of the City having been granted in all of those cases, a judgment was entered for the City in the Schoblocher case for costs.

From that judgment an appeal is taken to this Court in the Schoblocher case against the City alone. Appeals are taken against Baltimore City in the granting of the “B” and “C” demurrer prayers and judgment in favor of the City by East Coast, Gretsinger, and Schoblocher, now Amstutz. An appeal is taken by East Coast on the refusal of its demurrer prayer against Gretsingers in that case and from the judgment in favor of Gretsingers. We will first consider the action of the trial court in granting the “B” and “C” prayers of the City taking the cases of Gretsinger, Schoblocher, Willis, Lewis, and Gillikin from the jury as to the City.

Those prayers follow: “B Prayer The Court instructs the Jury that there is no evidence in this case legally sufficient to prove that any negligence on the part of the Mayor and City Council of Baltimore caused or contributed to the happening of the accident mentioned in the testimony, and the verdict of the Jury must, therefore, be for the Defendant, the Mayor and City Council of Baltimore. C Prayer The Court instructs the Jury that there is no evidence in this case legally sufficient to show that the Defendant, the Mayor and City Council of Baltimore, was guilty of negligence causing or contributing to the happening of the accident mentioned in the evidence by (1) maintaining a dangerous obstruction, public hazard and nuisance in the bed of Wilkens Avenue, (2) in failing to mark the center grass plot mentioned in- the evidence with warning signs, shields, barriers or other devices to warn east bound traffic of the presence of said center plot, ²⁷¹ or (3) in failing to restore the lights mentioned in the evidence prior to the accident mentioned in the evidence, and therefore, under the pleadings in this case the verdict of the Jury must be for the defendant, the Mayor and City Council of Baltimore.” The primary question for our decision is whether, the City having established a grass plot in the center of the highway, Wilkens Avenue, there was sufficient evidence to present to the jury the question as to whether the City was negligent in not providing adequate warnings, at the beginning of the grass plot, to the East Coast truck on this dark, rainy night when there was evidence that the marks on the road were not visible to the driver of the truck approaching it for the first time. Viewing the evidence hereinbefore set forth in a light most favorable to the plaintiffs, there was evidence from which the jury might fairly infer that this was the first time that Schoblocher had ever traveled on Wilkens Avenue from the fact that East Coast’s route was Route 1 and Wilkens Avenue-was the Alternate Route 1. Route 1 on Washington Boulevard was closed to traffic on July 5, 1945, and Schoblocher, up until the night of the accident, had not been over the route since Washington Boulevard was closed.

The jury might also fairly infer from the testimony of Shaw that Schoblocher was on the right side of the street in the right lane as he approached the grass plot. Shaw, who was familiar with the street, could not see any lines in the streets, which were soaking wet. The jury might also fairly infer that if Shaw, who was familiar with Wilkens Avenue, could not see the lines in the street, that Schoblocher could not see them on account of the rain. There was creditable evidence that there were no warning signs on the pole or on the grass plot placed in the middle of the highway, Wilkens Avenue, on the night of the accident.

As Schoblocher approached the grass plot his left front wheel hit the curb of the grass plot and the tractor-trailer proceeded directly across it into the west bound lane of ²⁷² Wilkens Avenue. The time was one o’clock A. M. There was a drizzle and light rain, the night was dark and all the lights along Wilkens Avenue were out. It has been frequently stated by this Court that a case should not be taken from the jury on the ground of total failure of evidence if there is any evidence, however slight, legally sufficient and tending to prove the claim. Before granting a prayer for a directed verdict the court must assume the truth of all the evidence tending to sustain the suit and of all inferences of fact fairly deducible therefrom, even though such evidence may be contradicted in every particular by the opposing evidence in the case.

Brocato v. Serio, 173 Md. 374, 381 , 196 A. 125 ; Atholwood Development Co. v. Houston, 179 Md. 441 , 19 A. 2d 706 ; Henkelmann v. Metropolitan Life Insurance Co., 180 Md. 591, 595 , 26 A. 2d 418 . The City contends that it is not its duty to put up warning signs to control traffic in Baltimore City, that this is the duty of the police department, which is not a party to these cases. It relies strongly on the case of Green v. Baltimore, 181 Md. 372 , 30 A. 2d 261 . It was pointed out in that case at pages 374 and 375 of 181 Md., at page 261 of 30 A. 2d: “The Act of 1867, Ch. 367, took the Police Department out of the hands of the city, and put it in the control of the State.

By section 899 of the City Charter (1938 Ed.) ; Public Local Laws (1930), Art. 4, sec. 747, it is the duty of the Police Commissioner, who is appointed by the Governor, ‘to estimate annually what sum of money will be necessary for each current fiscal year to enable him to discharge the duty imposed on him, and he shall forthwith certify the same to the Mayor and City Council of Baltimore, who are required without delay, specifically to assess and levy such amount as shall be sufficient to raise the same clear of all expenses and discounts upon all the assessable property in the City of Baltimore, and cause the same to be collected as all other city taxes’; and, if the amount so estimated shall prove insufficient, he may issue certificates of indebtedness against the city to make up the ²⁷³ deficiency not to exceed fifty thousands dollars in any one year.” “The power to pass ordinances and make traffic regulations is in the Mayor and City Council; but the enforcement of them is the duty of the police. State v. Stewart, 152 Md. 419 , 137 A. 39 . As said in Altvater v. Baltimore, 31 Md. 462, 466 , the first case to come to this court after the adoption of the Act of 1867, ‘Whilst it is the duty of the Mayor and City Council of Baltimore, to pass all proper ordinances authorized by their charter in regard “to the prevention and removal of nuisances,” * * * they are deprived of the power of enforcing them.’ See also Sinclair v. Baltimore, 59 Md. 592 ; Taxicab Co. v. City of Baltimore, 118 Md. 359 , 84 A. 548 . The city cannot be held responsible unless it produced the condition in the streets resulting in injury.

Gutowski v. Baltimore, 127 Md. 502 , 96 A. 630 .” In that case, Green v. Baltimore, supra, Sarah Green was injured when the automobile in which she was riding ran into an unlighted pylon on North Avenue about six o’clock on a rainy, dark, and foggy evening when she could not see. The evidence in the case showed that the pylon was installed, wired, and serviced by the Police Department. This Court held in that case that, if there was negligence in the case, it was the negligence of the Police Department and the judgment in favor of the Mayor and City Council of Baltimore was affirmed. In that case the statement was made at page 376 of 181 Md., at page 262 of 30 A. 2d: “The City and the Railway Company construct the pylons and provide the safety zones, and thereafter they are in charge of the Police Department.” The uncontradicted evidence in that case showed that the United Railway and Electric Company, the predecessor of the Baltimore Transit Company, installed the concrete platform and the Police Department and not the City installed the pylon.

The evidence in the case showed that the Police Department and not the City authorized, located, designed, constructed, and maintained the safety zone and pylon. The City did not place the obstruction in the ²⁷⁴ street. By the sentence above quoted from that case, what was meant was that the City and the Railway Company shared the cost of the construction of the pylons and safety zones, the City paying through its annual appropriation to the Police Department. That Department having constructed the pylon and having failed to keep it lighted the City was not liáble.

This is clear from the above quoted sentence: “The city cannot be held responsible unless it produced the condition in the streets resulting in injury.” The case at bar is not similar to the following cases: Altvater v. Baltimore, 31 Md. 462 , where a pedestrian was injured by a sled coasting in the street and where it was the duty of the Police Department to enforce an ordinance preventing such occurrences; Sinclair v. Baltimore, 59 Md. 592 , where a pile of building material was allowed to remain in the street in the course of the erection of a building, the City not being responsible for the material being in the street; Taxicab Company v. Batimore, 118 Md. 359 , 84 A. 548 , where a contractor had left a quantity of building material in the street at night; Gutowski v. Baltimore, 127 Md. 502, 96 A. 630 , where the City was sued for non-enforcement of an ordinance; State v. Stewart, 152 Md. 419 , 137 A. 39 , which involved the enforcement of traffic regulations in Baltimore. In Charles v. Baltimore, 138 Md. 523 , 114 A. 565 , relied on by the appellee, where the driver of an automobile collided with a concrete division wall separating the driveway of a bridge on Poplar Grove Avenue in Baltimore into, two ways and where the light ordinarily lighted was out at the time of the accident, the court there, by implication, recognized the duty imposed upon the City of lighting the bridge. See Baltimore v. Thompson, 171 Md. 460, 471, 189 A. 822 . The City also relies strongly on the case of Cumberland v. Turney, 177 Md. 292, 9A. 2d 561.

In that case the plans for the construction of the street where the accident happened were approved by competent and skilled experts, just as the construction of the grass plot in the instant case was approved ²⁷⁵ by skilled and competent engineers. However, in that case this Court specifically found, at page 320, of 177 Md., at page 571 of 9 A. 2d, that traffic signs were erected which were there to be seen and plainly visible had the driver of the automobile looked. In the instant case, the jury might fairly find that there were no warning signs. The case at bar is in line with Baltimore v. State, for of Use of Cirtout, 146 Md. 440 , 126 A. 130 , where the City had paved a part of a public street, then, without lights, barriers, or warnings, permitted the remainder of the street to remain unpaved and terminate in an abrupt declivity; Baltimore v. O’Donnell, 53 Md. 110 , 36 Am.

Rep. 395 , where the City employed a contractor to repave a city street and the contractor stretched a rope across it to prevent travel thereon because it was impassable and someone ran into the unlighted rope; Baltimore v. Walker, 98 Md. 637 , 57 A. 4 , where a pedestrian fell over a stop-box installed by the City and which projected two or three feet above the pavement; Annapolis v. Stallings, 125 Md. 343 , 93 A. 974 , where the City permitted a hole to remain in the sidewalk for an extended time and plaintiff fell in it; Baltimore v. Biggs, 129 Md. 686 , 99 A. 860 , where an automobile ran off the public street into the water, the termination of the street not being indicated in any fashion; Baltimore v. Bassett, 132 Md. 427 , 104 A. 39 , where the plaintiff attempted to board a streetcar at a proper streetcar stop and stepped into a hole three or four feet in diameter which the City had permitted to remain there for a number of months; Cordish v. Bloom, 138 Md. 81 , 113 A. 578 , where the plaintiff fell as a result of a defective sidewalk condition which had been permitted to remain for sometime; County Commissioners of Kent County v. Pardee, 151 Md. 68 , 134 A. 33 , where the plaintiff was riding in an automobile which ran over a deep rut filled with water accumulated from ditches on the side of the road. In the case of McCarthy v. Clark, 115 Md. 454 , 81 A. 12 , where a contractor had left an ²⁷⁶ iron manhole frame on the sidewalk at night while performing work for the City, the City in that case claimed that it was not liable becauase the omission to remove or guard the obstruction was vested in the Police Department over which the City had no