State Ex Rel. Henderson v. United Railways & Electric Co.

³⁰⁸ Stockbridge, J., delivered the opinion of the Court. This is a suit by the appellant under Lord Campbell’s act against the United Railways and Electric Company for the killing of his wife as the result of alleged negligence on the part of a motorman of the railway company. The sequence of facts of the killing are substantially these: Mr. Henderson had been attending a funeral to which he went in his own limousine and was himself operating the machine. After the interment in the cemetery he left by the northernmost gate, which comes out on Grecnmount Avenue nearly opposite but a little to the south of Lafayette1 Avenue.

On Greenmount Avenue there is a wall bounding the cemetery which, as it reaches this northern gate, makes a curve into the gate itself. In the machine with Mr. Henderson were his wife, who was sitting on the rear seat directly behind her husband, and upon her right two other ladies. On the front seat and to the right of Mr. Henderson was seated Mr. Charles C. Rhodes. The machine was headed west, and as it emerged from the cemetery gate there was a car of the railway company approaching from the south.

Mr. Henderson was not looking in the direction from which the car was coming until just as his machine was, as some of the witnesses say, struck by the ear, or, as others put it, pushed around by the car so that after the collision it was facing south. As to the force of the impact, there is some difference in the testimony, but one physical fact, upon which there is no contradiction, gives the most accurate idea of the violence of the blow. Mr. Henderson’s automobile was struck a little back of the middle of the machino upon the left-hand side, about opposite the rear door of the machine. The machine v7as not upset and did not appear to be greatly injured.

This is of importance chiefly as showing the speed at which the car must have been proceeding. None of the passengers were thrown from the machine, but Mrs. Henderson was injured ³⁰⁹ by flying glass and seems to have suffered also some internal injury, as a result of which she died five days later. There are eighteen exceptions in the record of the ease, seventeen of which are upon the testimony, and the eighteenth to the action of the court on the prayers. In argument, before this Court appellant grouped the exceptions under four heads, as follows: “1.

The court refused to permit the plaintiff’s witnesses to testify as to -the speed of the street car. “2. The court permitted an experienced motorman to contradict, under guise of expert testimony, the evidence of the motorman of the death inflicting car. “3. The court refused to permit fair and awful cross-examination of the motorman. “4. The court’s instructions were erroneous and prejudicial.” The first of these was to the refusal of the trial court to permit Mr. Charles R. Rhodes, an attorney, to answer a question as to the speed of the car.

There had been no evidence to justify Mr. Rhodes in testifying as an expert upon the point. He could, of course, have testified as- to whether the oar was moving rapidly or slowly, but not to fix the rate of speed as so much per hour, without having shown some special knowledge which would enable him to speak as an expert. Mantik's Case, 127 Md. 205 . The brief of the appellant contains the following note: “.Before proceeding with the discussion of our second point it is proper for us to say that an examination of the record shows that the second exception is without merit.

The same testimony was adduced without objection at other1 stages of the trial.” It therefore becomes unnecessary to enter into, any discussion of the points raised in the trial court with regard to the evidence which forms the basis of the second to the seventeenth exceptions. The third of the points upon which a reversal is asked is, as already noted, that the court refused to permit fair and lawful cross-examination of the motorman. ³¹⁰ A careful reading of the direct and cross-examination of M. K. Guy, the motorman, and O. Edgar Hearn, the instructor of motormen for the company, fails to disclose such a curtailingi of cross-examination "by the court 'as entitles this ground of exception to any serious consideration. The motorman was cross-examined at great length upon all of the facts, so far as he knew them, connected with the accident, and an attempt was made to elicit answers from both