Pindell v. Rubenstein

Offutt, J., delivered the opinion of the Court. The appeal in this ease was taken from a judgment of the Superior Court of Baltimore City, entered in an action on the case brought by the infant plaintiff against the appellees, to recover damages for injuries which are said to have resulted from the fall of a gate in a fence along the appellees7 premises on the Calverton Boad, a public thoroughfare in Baltimore City. Since the legal sufficiency and the legal effect of the evidence is involved, it is necessary to refer in some detail to ⁵⁷⁰ the facts of the case and the testimony given in respect to them. Edward H. Pindell, on July 17th, 1920, was not quite three years old.

His mother, who then lived at Ho. Id South Calverton Eoad, on that day sent him to a nearby store with her younger sister, Winona Seymour, then about ten years old. On their way to the store the two children went along the street by the appellees’ property, and which was separated from it by a wooden fence, in which there was a wooden gate about five or six feet high. As they passed this gate, it fell and struck the infant plaintiff, breaking the “large bone of the left leg” in three places, “and the small bone in two.” There was no direct testimony as to the actual happening of the accident except that of Winona Seymour.

When asked to tell what happened, she said: “July 17th, my sister sent me to the grocery store to get a needle and we walked by the gate and the gate fell on him.” She was then asked: “Were you holding Edward’s hand ?” and she answered: “Tes, sir.” After testifying that she was holding Edward’s right hand with her left, and that he was walking on the side next to the gutter, and that she was between him and the fence, she was asked to further describe their relative positions, and in reply she said: “He was holding my hand and he was in back of me,” and when asked to tell what happened, she answered: “As we were walking down the street, well, I heard him scream, and when I looked back the gate was on him, and I slid the gate off and picked him up and carried him in the store.’* She further testified that the gate was a heavy wooden gate and was “off the fence.” She carried the child to the store and then carried him home and handed him over to his' mother. On cross-examination she said she did not actually see the gate fall, as Edward was about two feet behind her at that time; that when she first saw Edward after the accident he was lying on his back with his face towards the fence, with the gate “on all of him but hi's head,” and that, while the gate.did not hit her, she “was only a little ⁵⁷¹ ways from it,” and that “she and Edward were walking up close to the gutter.” She further testified that the gate was made up of a number of strips “running up and down” and led into the appellees’ yard. She was then asked a number of questions designed to show that when she went into the appellees’ store with the child after the accident she had said to Mr. Rubenstein, one of the appellees: “It was not your fault; Edward climbed up on the gate and pulled it over on him”; and she in reply to these questions denied having made the statements. Martin J. Scharf, a blacksmith’s helper, who worked at the time across the street from the appellees’ store, testified that the Calverton Road is about thirty feet wide at that point, that he had seen the gate in the fence lining Mr. Rubenstein’s place, and that “he saw the gate off the hinges nearly three weeks and that they would have to take it off the latch and lift it over in order to open it up”; that he saw the garbage and the ice man and Mr. Rubenstein himself open it that way; that it was off its hinges before and at the time the boy was hurt; that there were T-hinges at the top and bottom of the gate from which the screws were missing; that he saw the gate lying on the child and saw the little girl move it and carry the child into the store; that the gate or the hinges “were afterwards fixed”; that it blew down in a wind storm and about a week after the accident Mr. Ruben-stein “came over and borrowed a hammer and fixed it up.” On cross-examination he said that the gate was opened by lifting it around; that the “fence part”, of the hinges was loose, and the gate was held in place by a latch.

Joseph O’Connell, foreman for a firm of contractors, engaged in the business of constructing cement alleys, and who is a brother-in-law of Mrs. Pindell, testified that he noticed the gate particularly on the Monday before the accident, and at that'time the top hinge was gone and the bottom hinge “just set up in place,” with one old rusty screw in it, and that the part that “hooks on the fence was not hooked, just ⁵⁷² set in place,” and that on the day the boy was hurt he again saw the gate and it was in the same condition. On cross-examination, after going over in greater detail the facts referred to above, the witness was asked why he had examined the gate so carefully on the Monday before the accident and he replied: “Because I could look at the top hinge, and I know the gate was going to fall on me. It was dangerous.” He afterwards said that he did not know it was going to fall on him because he did not get “that close to it.” He further said he did not speak of the condition of the gate either to Mrs. Pindell or to Mr. Rubenstein. William A. Calvert, a carpenter, said that about ten months before the date of his testimony (June 25th, 1921,) while at work for Mr. Rubenstein, he had occasion to use the gate, that then it was hanging on a staple and to open it he had to pick it up and carry it around and lean it against the fence; that the bottom hinge was off the gate and the top hinge on; that when he went through he closed it and went inside and hooked it, and then it was safe.

On cross-examination he said that the wood in the gate was sound, and that when closed and hooked from the inside, as he left it, it was safe, and would not have fallen unless pulled over or pushed; that it would not fall unless it were unhooked. Dr. Edward F. Grempler, a physician, testified to having .examined the boy, and as to the nature and extent of his injuries, from which he said he had fully recovered. Mrs. Bertha Pindell testified that she had sent her sister and the little boy to the defendants’ store for a needle; that she knew nothing of the accident until she heard the child screaming when her little sister brought him in, a short time after they had gone out. She also described the care and attention which the child had and the medical and surgical treatment which he received.

On cross-examination she was asked first whether she had not told Mrs. Rubenstein that Winona her sister had told her that Edward was climbing on the gate and it fell on him; second whether she had not ⁵⁷³ made a similar statement to “the lady upstairs,” and in response to these questions she denied having made such statements, and also denied that her sister had told her that Edward was climbing on the gate. On behalf of the defendants, the testimony of Mrs. Lola Smith, John F. Malone, Lillian Rubenstein, a daughter of the defendants, Herman Rubenstein, and Dora Rubenstein, was offered to prove that Winona Seymour had said that Edward had climbed on the gate, and that Mrs. Pindell had said that Winona had made that statement. In addition to that testimony, Mr. Rubenstein said that he had never seen anything wrong with the hinges on the gate at all, that up to the time of the accident he never saw anything about the gate out of order; that the wood of the gate and the fence was in good condition, that he examined the gate the day it fell, and that the screws in parts of the hinges which had been fastened to the fence had pulled out, but the wood of the fence was .sound, and that on the day of the accident he had nailed the hinges back in place. At the conclusion of this testimony the plaintiff offered one prayer, which was granted, and the defendants six, of which the second, fourth and sixth were granted.

To the granting of the sixth prayer the plaintiff specially excepted, and the rulings of the court in overruling these special exceptions and in granting the defendants’ pi’ayers are the subject of the sixth exception, while the remaining exceptions relate to questions of evidence. These exceptions we will now consider. In the cross-examination of Winona Seymour, she was asked if, when she went into the appellees’ store after the accident, she had not said to Mr. Rubenstein, “It is not your fault; Edward climbed on the gate and pulled it over on him,” and she denied having made the statement. The defendants offered to prove by several witnesses that she had made the statement on that occasion, and that testimony was admitted over the plaintiff’s objection.

The admission of ⁵⁷⁴ this evidence is the subject of the first, third and fifth exceptions. We find no error in these rulings. The witness, Winona Seymour, had testified that the gate fell on the boy as he was passing by it. A statement that it fell over because he climbed upon it was inconsistent with that testimony, and was admissible for purposes of impeachment, provided a proper foundation was laid for its admission, as was done in this case, by asking the witness on her cross-examination whether she had not made the contradictory statement to a designated person and informing her of the time and place when it was supposed to have been made. 28 R. C. L. 633; Caledonian Ins.

Co. v. Traub, 83 Md. 524 . Mrs. Pindell on cross-examination was asked this question: “Did you tell the lady upstairs that Winona had told you that the little boy was climbing on the gaté ?” She denied having made the statement, and the defendants then called Mrs. Lola Smith and having proved that she lived on the second floor of the house in which Mrs. Pindell lived at the time of the accident, was asked: “Did the mother of the little boy make any statement to you as to how the accident happened ?” An objection to this question was overruled and the witness said that Mrs. Pindell had made such a statement to her on the day of the accident. She was then asked to tell what that statement was. Counsel for the appellant again objected, but the court directed the witness to answer, and she said: “Mrs. Pindell says to me, as I went out I said to her, I asked her how little Edward was, and she told me she sent Winona and Edward over to the store to get a needle, and Winona was walking in the street and Edward walking on the pavement and pulled on the gate and the gate fell on him, and she told me, I said to her, ‘Why don’t you go over and see Mr. Bubenstein ?’ She said, ‘I have been over there, and Mrs. Bubenstein volunteered to get the doctor, and she would do all and pay all that was necessary for the child.’ ” Some question has been made as to whether the exception noted to the court’s ruling applied to this evidence, but in view of the statement ⁵⁷⁵ of the learned and careful judge who tried the case that it was subject to the exception, we will treat the exception as valid.

Mrs. Pindell was also asked on cross-examination if she liad not on the day of the accident made a similar statement to Mrs. Eubenstein, and she denied having done so. The defendants offered to prove by Mr. Eubenstein that she had made such a statement to him and he was allowed to testify, over the plaintiff’s objection, that Mrs. Pindell told him that she knew it was not his fault, that while she was not there when the accident happened the little girl told her. These rulings are the subject of the second and fourth exceptions. There was in our opinion prejudicial error in these rulings.

Mrs. Pindell had positively disclaimed any knowledge of the accident or the instrumentality which caused it. Anything which she may have said therefore as to it was necessarily hearsay, irrelevant and collateral to any issue involved in this case. She was in no sense a party to the cause within the meaning of the rule permitting evidence to be given of admissions against interest made by a party, and her admissions were not competent to affect the interest of the infant whom she represented. 22 C. J. 353; Jones, Evid., par. 266; Baltimore City Pass. Rwy.

Co. v. McDonnell, 43 Md. 534 . In the case last cited, which was an action by an infant plaintiff to recover for personal injuries received in a street car accident, the defendant offered to prove that the infant plaintiff’s father and prochein ami had said in speaking of the accident, that he did not blame the driver at all and that the child was injured by a