Legum v. State Ex Rel. Moran

Offutt, J., delivered the opinion of the Court. ³⁴² North Avenue running east and west in Baltimore City is carried over the tracks of the Pennsylvania Railroad by a viaduct known as the North Avenue bridge. Mc-Mechen Street running northeast intersects North Ave-nut at the western end of that bridge, and ends there. The United Railways & Electric Company operates trolley cars over both North Avenue and McMechen Street, and the tracks on North Avenue are connected with those of McMechen Street by a set of curves and switches beginning at a point between thirty and forty feet east of McMechen Street and extending southwesterly. At the intersection, North Avenue and McMechen Street form two sides of a triangular plot of ground, and going west along the North Avenue side of that triangle are, in order, a small grass plot, a fire engine house, and the business establishment of Ditch, Bowers & Taylor.

The apex of the triangle is about ninety feet from the west end of the bridge, and from the southeast curb of Mc-Mechen Street to the north curb of North Avenue at that point is about 130 feet. Intersecting North Avenue opposite the intersection is a narrow street or alley called Lord Street, running northwest from North Avenue. At that intersection, at the apex of the triangle and at the northeast corner of McMechen Street and North Avenue, are traffic lights. Those lights are so set that when traffic bound west over North Avenue and McMechen Street is allowed to proceed, traffic bound east over those streets at that point is stopped, and when the east bound traffic is released the west bound traffic stops; so that a pedestrian crossing North Avenue at that point must first clear the traffic going in one direction, and then the traffic going in the other, since each proceeds alternately across his path.

From the south curb of North Avenue to the south rail of the east bound street car tracks is eighteen feet seven inches, and the dummy space between the west and east bound tracks is about six feet five and one-half inches wide, and in that space are the trolley poles. There appears to be at the intersection no physically defined cross ³⁴³ ing for pedestrians going north or south over North Avenue to or from McMechen Street. Near the south curb of North Avenuue, in the sidewalk, slightly east of the intersection, there is an electric light pole on which is placed one of the traffic lights. The distances noted are approximate.

Early in the evening of February 7th, 1933, William P. Gardiner, proceeding east over North Avenue, when about half way “across McMechen Street,” saw Sidney G. Moran, husband and father, respectively, of the equitable plaintiffs, standing on North Avenue between the rails of the east bound railway tracks, facing north. The automobile in which Gardiner was a passenger was traveling at about thirty miles an hour. Proceeding in the same direction, to the left and slightly ahead of that machine, was one owned by the defendant, the Park Circle Motor Company, and operated by William Becker, its employee, apparently traveling at about the same speed, which was “straddling the south rail of the east bound track.” The Becker car proceeded on its course, with no perceptible lessening of its speed, and Moran remained in his position without moving, until he was struck by the Becker automobile. As a result of the collision, Moran was so badly injured that he died, and this suit was brought by his widow and children to recover compensation for his death, on the theory that the direct and proximate cause thereof was the negligence of Becker in operating his employers’ automobile.

The defense was contributory negligence, and to that defense the plaintiffs replied that, even if there was contributory negligence, Becker should have known of Moran’s peril in time to have avoided striking him, had he exercised reasonable and ordinary care. The case was tried in the Court of Common Pleas of Baltimore before the court and a jury, and, from a verdict and judgment for the plaintiffs, this appeal was taken. In addition to the facts which have been stated, there was adduced at the trial evidence tending to prove these ³⁴⁴ facts, which will be stated in narrative form: At the time of the accident it was dark, but the street lights, which were burning, lighted up the bridge so that it was possible for the witness Gardiner to see clearly a block ahead of him; it had been raining earlier in the day, but at the time of the accident the rain had ceased and the surface of the street, while damp, had begun “to dry out a little”; when the accident occurred the traffic lights were set against west bound traffic, and one or two street cars had stopped at the switch, where regularly they took on and discharged passengers; when he was struck, Moran was about thirty-three yards east of the light pole at the corner of McMechen Street and North Avenue; broken glass was found between the rails of the east bound car tracks about seventy-five feet east from Mc-Mechen Street, or possibly as much as one hundred feet from that point; when he was struck Moran was standing about “two-thirds of the way back” or near the middle of the standing street car, if there was but one, or, if there were two, of the “easterly one”; the street cars were forty-four feet in length; from the time Gardiner first saw Moran, which was when he was about forty-one yards from him, Moran neither moved towards the dummy nor turned his head, so far as Gardiner could see, and was not looking in the direction from which traffic was coming. James A. Byrd, who was driving the automobile in which Gardiner was a passenger, saw Moran when he, Byrd, was about ninety-five yards away, and he was then standing in the east bound car tracks about eighteen yards east of McMechen Street; at that time Becker was driving in the east bound tracks to the left of the witness “kind of abreast” but “a little ahead of him,” at about thirty miles an hour, and continued that rate of speed until he struck Moran, who at the time was about middle way of a standing trolley car facing it, which was in front of and north of him, and he, Byrd, heard no horn or other warning from Becker’s car; when Byrd, proceeding east on North Avenue, passed Ditch, Bowers & Taylor’s place, he saw the McMechen Street ³⁴⁵ traffic light change from red to green, which permitted east bound traffic to proceed, and, after Becker’s car struck Moran, Becker drove it to the curb probably fifty or sixty feet east of the point of collision; its right front fender was dented and the glass of the right headlight broken.

Contra, there was evidence tending to prove that the night was foggy, that a drizzling rain was falling, that the visibility was farther lowered by vapor and smoke rising from the railway tracks which ran under the viaduct, that the headlights of approaching automobiles were very glaring, that numerous cars were approaching from the west and several ahead of him and others back of him, that Becker “travelled well up on towards the top of the crown of the bridge and all of a sudden a completely black object loomed up directly off his right hand fender, and the next instant he sort of brushed the gentleman right over the top of the fender itself”; that when Becker first saw him, Moran was about one or two feet away, that the street was wet and slippery, that his fender was not dented, but that his right headlight lens was broken and the headlight itself turned around, and that at the time of the accident he was driving at from eighteen to twenty-two miles an hour. In connection with the examination of Byrd, who had known the location some twelve or fourteen years, he was asked if, at the time of the accident, Moran was standing “in the regular place that pedestrians use to cross the street.” An objection to that question was sustained, and the plaintiffs then offered to prove “that the place at which Mr. Moran was standing at the time he was struck on the evening of the 17th of February, 1983, was at the place or in the position where people were and have been for many years accustomed to cross North Avenue at its intersection by McMechen Street, either to take a car west bound, standing at that point, or to go to the north side of North Avenue,” and “that the place where for some fourteen years he had observed people were in the habit of crossing North Avenue at the point in question, ³⁴⁶ was the point or place or approximately the point or place in the line of which Mr. Moran was standing, facing the stationary trolley car, at the time he was struck-by the car driven by Mr. Becker.” Those offers were also overruled, and those rulings, while not directly involved in this appeal, must be considered in connection with the questions submitted by the prayers. At the close of the case the plaintiffs offered four prayers and the defendants eleven. The plaintiffs’ four prayers were granted, and special exceptions to the third prayer overruled; the defendants’ first and fifth prayers were granted as offered, their remaining prayers were refused as offered, but their third and and fourth prayers were modified and granted, and special exceptions filed to the modification of defendants’ third and fourth prayers overruled.

Those rulings are the subject of the only exception submitted by the appeal. Becker’s negligence was not denied in this court, so that the questions presented by the appeal are: (1) Was Moran guilty as a matter of law of contributory negligence? (2) Assuming that Moran was negligent, and that, as a result of his own negligence immediately prior to the collision which caused his death, he occupied and remained in a position of peril, was there evidence legally sufficient to support the conclusion that Becker should, in the exercise of ordinary care, have known that he was in a position of peril and unaware of his danger in time to have avoided striking him had he, Becker, used ordinary care to that end after he should have discovered Moran’s danger? In dealing with the first question as a matter both of law and logic the truth of every fact tending to exculpate Moran from the charge of contributory negligence must be assumed.

The first and most striking circumstance to be considered in connection with that issue is that at the time of the accident Moran .was standing, apparently oblivious of his surroundings, a few feet south of the center of North Avenue, directly in the course of east bound traffic, and ³⁴⁷ the controlling inquiry is: (a) Had he any right to be there at all; (b) if he was entitled to be where he was, was he under a duty to exercise reasonable care and diligence to detect and avoid danger from traffic east bound on North Avenue; and (c) if he failed to exercise such care was he negligent as a matter of law ? Section 209, ch. 224, Acts of 1929, in part provides that: “All pedestrians shall have the right of way at street crossings in the towns and cities of this State, except where traffic is controlled at such crossings by traffic officers. Between street crossings in such towns and cities, vehicles shall have the right of way.” It is implicit in that statute that, while a pedestrian may lawfully travel on or across a city street “between street crossings,” his right to so use the street is subordinate to that of vehicular traffic in the lawful use thereof, and that, while vehicular traffic may lawfully traverse street crossings, its right so to do is subordinate to that of pedestrians in the lawful use of such crossings, and that the relative rights of the operators of motor vehicles and pedestrians, in respect to any question of negligence arising from their use of the highway, must be tested by those rules. It is important, therefore, in such a case as this, in a collision between a motor vehicle and a pedestrian, to know whether the collision occurred within the limits of a pedestrian crossing, or whether it occurred between crossings.

There is no statutory definition of a “street crossing” in this state; nor does the record show that there is any physically defined crossing over North Avenue at its intersection with McMechen Street. In Clarkson v. Ley, 106 N. J. Law, 380, 148 A. 745, 746 , the court construed a statutory definition of a crossing which provided that “the word ‘crossing’ includes all duly indicated crossings marked by a pavement or otherwise, and the most direct route from curb to curb at the intersection of streets.” In that case the pedestrian attempted to cross Lexington Avenue at its intersection with Holdsworth Court, which intersected Lexington Avenue at a right angle, and end ³⁴⁸ ed there. The question was whether there was a crossing at that point within the statute. It was held that there was, and, further, that “a pedestrian is upon a crosswalk or ‘crossing’ if she is within the confines of that portion of the highway which would be embraced within the boundaries of the lines of the sidewalk of the street entering the other highway at a right angle, if continued across the other highway.” In Ferris v. McArdle, 92 N. J. Law, 580, 106 A. 460, 461 , construing the same statute, in a case where the streets intersected each other at a very slight angle, it was held that the pedestrian was only required to take “the usual or natural course or line.” In this case McMechen Street intersects North Avenue at a wide angle.

A direct course across North Avenue at that intersection, and at a right angle thereto, would require the pedestrian to cross two sets of switches which are at times occupied by street cars, and there are no physical lines to mark the limits of the crossing, nor can they be readily ascertained by projecting the lines of the sidewalks of the intersecting streets, as might be done if they intersected at a right angle. Moreover, when the traffic signals permitted pedestrians to cross over the south half of North Avenue at that point, they permitted vehicular traffic to move westerly over the north half thereof, and, when such traffic was permitted to move east, vehicular traffic west bound was stopped. So that a pedestrian, going north after crossing the south half of the way with the signals, might find his way across the avenue blocked by street cars, if the signals changed to permit the east bound traffic to move before he completed his crossing. Under such circumstances, neither the precise location nor the exact width of the crossing could be definitely defined, nor could any definition of it be given more specific than that of the most direct route across the street at the intersection.

The plaintiff offered evidence to show where, over a period of fourteen years, persons were accustomed to ³⁴⁹ cross the street at that point, but the offer was refused. That evidence, if coupled with other evidence showing that Moran knew of the custom, may have thrown light on the question, and if the offer had included that qualification it would no doubt have been admitted: but as this is a defendant’s appeal the ruling is not reviewable. Its exclusion, however, was not material, for there is in the case other evidence from which it could have been inferred that Moran was standing within the limits of the crossing when he was struck. One witness, Byrd, testified that w hen Moran was struck a west bound trolley car had stopped at the switch, and that Moran was “standing, he thinks, about middle-way of the trolley car by the side of the car,” and that at that time no other street car was there.

There was also evidence that all the street cars stopped at the same point, that the car standing near the switch at the time of the accident had stopped at the