State v. Emerson & Morgan Coal Co.

The Emerson Morgan Coal Company, Inc., was, on April 24th, 1924, engaged in the business of selling and delivering coal in the City of Baltimore. Shortly before two o'clock in the afternoon of that day, one of its trucks, loaded with two and one-half tons of coal, backed up at a right angle to the curb in front of 324 on the west side of North Monroe Street in that city for the purpose of delivering the coal into the cellar of that house. The truck was furnished with a chute and a hoisting mechanism, which were used to unload it. In unloading the truck, the chute, which was a steel trough, was attached to the rear end of the truck body, and extended through a window into the cellar of the house.

The truck body with its load of coal was then elevated by the hoisting mechanism so that the floor of the truck and the chute formed a continuous plane inclined at such an angle that the coal would slide by gravity from the truck body into the chute and through it into the cellar. At the time the accident which is the basis of this suit happened, the chute had been adjusted, and the body of the truck elevated, and two of the appellee's employees were engaged in unloading the coal. One of them stood at the rear of the truck controlling the volume of the flow of coal by manipulating the flood gate, and the other had his head in the cellar window, directing the course of the flow of the coal running through the chute into the cellar. The truck itself extended east across a part of the southbound car tracks on Monroe street, so that the truck and the chute together formed an obstruction across the entire sidewalk on the west side of Monroe street, the space between the sidewalk and the car tracks, and a part of the southbound car track.

Whilst the truck was in that position, Mrs. Joseph M. Thompson, wheeling a baby carriage, going north on Monroe street, approached and attempted to cross under the chute. She had pushed the carriage under it and was in the act of going under it herself, when it collapsed, striking her, crushing *Page 435 her to the pavement and inflicting injuries from which she died a short time afterwards. She left to survive her a husband and four children, aged from ten months to twelve years, and on June 21st, 1924, this suit was brought in the name of the State for their use to recover for the loss which they claim to have suffered as a result of her death, which they say was occasioned by the defendant's negligence. The case was tried before the court and a jury in the Superior Court of Baltimore City, and the verdict and judgment at that trial being for the defendant, the plaintiffs appealed.

The record contains eighteen bills of exception, which were signed on the 30th of December, 1925. The judgment was entered on August 25, 1925, and on December 7th, 1925, the court signed an order extending the time for signing the several bills of exception to January 8th, 1926, and for submitting the exceptions to appellee's attorneys to December 18th, 1925. The appellee now moves to dismiss the appeal on the ground that the bills were not submitted to its counsel until December 18th, 1925, although under the statute they should have been submitted to them not later than December 5th, 1925, and upon the further ground that the record was not paid for within the time prescribed by the rules of this court. When the bills were submitted to the attorneys for the appellee, they suggested certain changes, which appear to have been made before the bills were actually signed and filed, so that it suffered no injury through the failure of the appellants to submit the exceptions for their inspection within the time required by the statute (chapter 338, Acts 1924).

These points were not pressed at the argument of the case, and in regard to them it is sufficient to say (1) that, the first point is concluded by the case of Wegefarth v. Weissner, 132 Md. 603 , where it was held that under chapter 625 of the Acts of 1916, which for the purposes of this question is similar to the present act, that the trial court could for "good and sufficient reasons" extend the time for signing the bills of exceptions beyond the period designated by the statute, *Page 436 and by the case of Middendorf v. Milburn Co., 137 Md. 595 , where it was held that, although the bills of exception in that case were not submitted to the attorneys for the appellee before the expiration of the time "provided by the statute, but nevertheless they were signed by the court within the expiration of the time limited by the statute," they were valid because it did not appear that the appellee "suffered any injury thereby"; (2) as to the second point, that the appellant failed to pay or secure payment for printing the record within the time fixed by Rule 36 of this Court, we do not feel that we have before us sufficient data to pass upon the question. The appellee suggests to the Court that an estimate of the cost of printing the record had been sent by the clerk of this Court to the attorneys for the appellant on January 8th, 1926, and that the attorneys for the appellees were "advised" by the clerk, on January 22nd and January 27th, that he had "heard nothing from the attorneys in reply," but it does not appear how the notice was sent or when it was received. The appellant by way of reply to these allegations avers that its attorneys, "within a comparatively short time" after receiving the estimate of the cost of printing the record, directed the printer to "proceed with the printing" and arranged to pay therefor. Manifestly that would be no answer at all, for the rule requires that the cost of printing the record shall be paid or secured "to the clerk within ten days from the receipt of such notice," and the appellant cannot escape the effect of the rule by employing a printer independently of the clerk to print the record, at such time as he may deem convenient, and in a proper case, where a failure to comply with the rule injures the appellee, such failure would be ground for dismissing the appeal.

But since in this case it does not appear except from hearsay when the notice was sent, or, from any source, how it was sent or when it was received, and since it does appear that the appellee was not injured by the delay, the second ground set out in the motion to dismiss the appeal is not sufficient, and the motion will be overruled. Mayor and City Council *Page 437 of Havre de Grace v. Fletcher, 112 Md. 562 ; Jacobs v. Disharoon, 113 Md. 92 ; German Union Fire Ins. Co. v. Cohen, 114 Md. 130 . Seventeen of the eighteen exceptions relate to rulings of the trial court upon questions of evidence, and the eighteenth to its rulings on the prayers and the exceptions thereto.

Before attempting to deal with these exceptions seriatim, we will refer briefly and generally to the effect of the evidence relating to them. It is not clear that the appellant had any definite theory as to the cause of the accident. Its witnesses could not or at least they did not express any opinion upon that point. George P. Black, a police officer, in describing the hoisting mechanism, said that the cart, while it was elevated by means of the hoisting mechanism, was suspended from chains, one end of which was attached to an "eyelet" in the top of a steel upright on either side of the truck and the other to the bottom of the truck; that one of these eyelets looked "old and worn," and that it was worn down so that the chain pulled through it and was hanging down, but he did not say or intimate that the accident was caused by that condition of the eyelet, and in the absence of any satisfactory description of the hoisting mechanism it is impossible for us to say that the condition of the eyelet described by the witness had anything to do with the accident.

The same witness further said that there was no broken link in the chain, but that the eyelet was "broken." August P.W. Desor said that he saw one of the men with the truck take from it what looked like a broken chain. Officer Claude E. Long testified that he saw the truck shortly after the accident, and that he found that the "eye" on the upright on the right side of the truck was worn and broken, so that the chain pulled through, but that the chain itself was not broken, that he did not know why the truck body fell, but "judged" that it was because the chain pulled through the eyelet. There was other testimony offered by the appellant tending to show that just before the accident and before it had been elevated *Page 438 the rear end of the truck was about four or five feet from the ground at the curb, and that after the chute fell Mrs. Thompson was found under it partly covered with coal, and that the baby had been thrown from its carriage, which was overturned when Mrs. Thompson, who was pushing it, was struck and fell. The effect of this testimony is that, as Mrs. Thompson was passing under the chute, for some cause not clearly shown by the testimony, it fell on her and caused the injuries from which she died.

The defendant on the other hand has a definite theory of the accident. It contended that the fall of the chute was due to a defective link in the hoisting chain on the left side of the body of the truck; that as a result of the defect the chain broke or pulled apart; that the link was little worn, and that the defect which caused it to break was latent, that a part of the broken link was found at the scene of the accident, and that it showed that it had broken at a point where it had been welded. And it offered testimony tending to support these contentions, and also to show that its trucks were inspected daily to see if the mechanism operated properly. It further appeared from the defendant's testimony that the rear end of the truck when fully elevated was seven and a half feet above the sidewalk.

There was some conflict in the testimony as to the height of the chute above the sidewalk at the point where Mrs. Thompson attempted to cross under it. Dorsey, the driver, said that she had to stoop so that she could have picked up a pin from the pavement, but he also testified that the rear end of the truck was elevated about seven feet above the pavement. The same witness also testified that he had said to Mrs. Thompson when she was about twelve feet from the chute, "Lady, please don't go under this chute," and he repeated the warning when she continued to approach, but that she ignored it and was crossing under it when it fell. From this statement of the evidence it is apparent that the plaintiff's right to recover rests upon the doctrine of res ipsa loquitur, and that the defences are (1) that there was no *Page 439 evidence legally sufficient to show primary negligence on the part of the defendant, and (2) if there was, nevertheless the negligence of Mrs. Thompson so far contributed to the happening of the accident complained of that the plaintiff cannot recover in this case.

And we will now consider the exceptions in connection with those contentions. George P. Black was asked to what extent general vehicular traffic ran on Monroe street "past" the 300 block. The court refused to permit the question and that ruling is the subject of the first exception. When that ruling was made there was no evidence in the case which showed that the sidewalk on which Mrs. Thompson was traveling when she was injured was obstructed, and in the absence of any offer on the part of the plaintiff to show that fact, we find no error in this ruling.

Later the same witness was asked this question: "Now, as you have seen these trucks delivering coal in that way through the projected chutes from the bodies of the carts into the windows of residences, what habitually, according to your observation, has been the course of people walking along the sidewalk?" To which the defendant objected. The court sustained the objection and that ruling is the subject of the second exception. We will assume from a colloquy between court and counsel immediately preceding it that the question was designed to show that it was a general custom of travellers on the streets of Baltimore City to walk under coal chutes when they were extended across the sidewalks of such streets. Assuming as we do that it was in proper form to elicit testimony to that effect, under the decisions of this court it should have been permitted, not so much as reflecting upon the negligence of the plaintiff as upon the negligence of the defendant.

For if the defendant knew that travellers, using the sidewalks of the city streets, usually or frequently crossed under the chutes obstructing and extended above the sidewalks from its wagons or carts unloading coal to the houses into which the coal was delivered by means of the chute, it became incumbent upon it to exercise at least ordinary *Page 440 care to see that persons so crossing under such chutes were not injured thereby. Monroe street was a public highway, and throughout its whole extent from end to end and from side to side was dedicated to public uses. Under the general rule, the right of the public to free and unobstructed passageway over every part of it was paramount to all other rights except such as are reasonably necessary to effect the purposes for which the street exists. Those purposes were twofold; first, to afford a safe and convenient way for the passage of the general public, and, second, to afford to persons abutting thereon ingress and egress to and from their properties.

The right of ingress and egress includes necessarily the privilege of receiving such supplies and materials, including fuel, as are necessary or convenient for the comfortable enjoyment of the abutting properties, and, as incident thereto, the privilege of temporarily obstructing the street and sidewalk for that purpose. But the right to obstruct the highway, even for such purpose, is limited and subordinate to the paramount right of the public to free and safe passage thereover. And if the obstruction is unnecessary, or if it subjects persons in the lawful use of the street to unnecessary dangers, or if it is maintained for an unreasonable length of time, it cannot be justified under the exception to which we have referred. These general principles have been long established, although there may have been some confusion in their application to the facts involved in the cases in which they have been considered.

This Court in Brauer v. Balto. Refrigerating Co., 99 Md. 376 , said: "The courts have frequently been called upon to consider the legal propositions controlling the use of the public streets. The cases upon the subject agree that the fundamental right to their enjoyment is that of the general public for passage over and along them. In the exercise of this right persons employing vehicles are primarily entitled to occupy the bed of the street while pedestrians have a similar priority of claim upon the sidewalk.

The owners of lots abutting on streets are permitted to encroach to a limited extent, for the necessary *Page 441 transaction of their business upon the primary right of the public provided they do not unreasonably interfere with its exercise. But it must always be borne in mind that the right of the public to employ the streets for purposes of travel and transportation is the paramount one and that of the abutter to occupy them for other purposes is a permissive and subordinate one. * * * A merchant or manufacturer whose place of business abuts on the street of a populous city may temporarily obstruct the sidewalk in front of his building in the process of loading or unloading his merchandise or the product of his factory provided he does not in so doing unreasonably encumber the footway or interfere with the reasonable use and enjoyment of the adjacent property." To the same effect is Garibaldi v. O'Connor, 210 Ill. 284 , 66 L.R.A. 74 , where it was said: "Abutters upon a public street may use the sidewalk in front of their premises for the purpose of loading and unloading goods, merchandise, or other like articles in which they may deal or use; but the sidewalks belong to the public, and the public primarily have the right to the free and unobstructed use thereof, subject to reasonable and necessary limitations, one of which is the right of an abutting property owner to temporarily obstruct the walk by loading or unloading goods, wares or merchandise when such obstruction is reasonably necessary. Such obstruction must, however, be both reasonable as to the necessity therefor, and temporary in point of time. The prior and superior right of passage is possessed by the public." And in McQuillan on Mun.

Corp., par. 1339, the same rule is stated in this way: "So it is not uncommon in certain lines of business for trucks to back up to the sidewalk and block passage thereon by loading or unloading goods by means of skids or otherwise. And it is held that such obstruction of the street or sidewalk may be justifiable under certain conditions, the rule being that a merchant may use and temporarily obstruct the street and sidewalk in front of his premises for loading and unloading goods, when not restrained by ordinance, if he does not unnecessarily or unreasonably interfere *Page 442 with their use by the traveling public. However, such use of the street and sidewalk must be (1) necessary, (2) temporary, and (3) reasonable, and whether the use is such is a question of fact to be determined with reference to time, place and circumstances." See also same section in the supplement to that work. The application of these general principles is illustrated in a number of cases collected in a note to Tolman Co. v. City of Chicago (Ill.), 24 L.R.A., N.S. 97.

And if in such a case as this, a person, engaged in delivering fuel to houses by means of chutes elevated above the sidewalk, knows that persons generally are accustomed to pass under such chutes rather than wait until the fuel is unloaded, or assume the risk of proceeding over that part of the street given up to vehicular traffic, then such person is bound to use reasonable care to see that persons passing under such chutes are not subjected to dangers other than such as are visibly incident to the flow of coal through the chutes, such as the fall or spilling of coal over the sides thereof. That conclusion is not only consistent with common sense, but is supported by authority. In Sheridan v. B. O.R. Co., 101 Md. 50 , the plaintiff was injured while attempting to cross over the bumpers of a train stalled across a public highway. It was proved that travellers on that highway had long been accustomed to go between or over or under trains similarly stalled at that crossing, and in dealing with the question of the defendant's negligence in that case it was said that the conduct of the defendant in so long permitting the "crossing of its stalled trains" amounted to