State v. United Railways & Electric Co.

Pattison, J., delivered the opinion of the Court. This appeal is from a judgment for the defendant, the United Railways & Electric Company of Baltimore, appellee, rendered in an action brought against it by the State of Maryland, for the use of Anna Chima, the appellant, to recover for the loss sustained by her in the death of her son, Theodore B. Dan, caused, as alleged, by the negligence of the defendant. It was alleged in the declaration that Theodore B. Dan, “on or about the first day of June, 1930, while the said Dan was a passenger on a street car belonging to the defendant, and operated by the defendant, its agents, servants and employees, in an unlawful, negligent and careless manner and at a high rate of speed over the tracks belonging to the said defendant, which tracks were maintained by the said defendant in a negligent and careless manner, he was, without any negligence on his part contributing thereto struck and knocked down when the said street car violently careened and swerved on the said tracks; that in consequence thereof the said Theodore B. Dan then and there sustained injuries of such a serious character that he died; and that said wrongful acts, neglect or default on the part of the defendant, its agents, servants and employees, were such as would, if death had not ensued, have entitled the said Theodore B. Dan to maintain an action against the said defendant to recover damages in respect thereof.” The conceded facts of the case were these: Theodore B. Dan, nineteen years old, with four others, Wilbur Olark, Oarl Martin, John Martin, and William Louder, boys of his age, planned to visit the Esssex skating rink near the <3ity of Baltimore on the evening of June 1st, 1930. They were to meet at Fifteenth Street and Eastern Avenue at I o’clock, ⁴⁰⁷ and ride with Louder in his automobile to Essex.

Louder-failed to meet the others at the appointed place and time, and after waiting for him until 7.15 o’clock, they decided to-take the Eastern Avenue car to Essex. Wilbur Clark and Carl Martin sat in the second seat from the front on the-right side of the car. The car was going east. John Martin sat on the front longitudinal seat on the left of the car, while Dan sat alone in the second seat on the left side, next to the window.

Louder, upon reaching Fifteenth Street and Eastern Avenue, and learning that the other boys had gone on the street car, drove down Eastern Avenue until he overtook the car. The road on which Louder was driving was on the north side-of the westbound car track. When he reached the car, he blew his horn, which was heard by those in the car, and Dan, who was seated on the side of the car next to the road on which Louder was driving, looked around and saw him in his automobile. The boys seated on the far side of the car also saw Louder, and they called and waved to each other.

The windows of the car were up. To prevent persons from putting their arms or heads out of the window, an iron screen, eighteen inches in height from the sill, was placed upon the outside of the window. Between the top of the screen and the bottom of the raised window, there was an opening of sixteen and one-quarter inches. In the car there was posted the warning: “Keep your Head and Anns inside of Car.” The accident occurred near the intersection of Southern and Eastern Avenues, when the car was moving up grade.

Prior thereto, it had been on a down grade of one per cent., for a short distance. In the dummy track, that is, the space between the east and westbound tracks, were poles used in connection with the operation of the cars. These were located near the north rail of the eastbound track, and on the side of the car on which Dan was seated. One of the poles was near or at the place where the accident occurred.

The evidence of the plaintiff and defendant differs as to how the accident happened. Upon this question the plain ⁴⁰⁸ tiff’s evidence is confined to that of Dan’s associates in the car, and Louder in his automobile near the car. Wilbur Clark, who was seated on the right side of the car, next to the aisle, testified that his attention was attracted to Louder’s presence in his automobile by the blowing of his horn, and looking around, he saw the automobile alongside of the street car. “He saw Theodore start to get up, knowing they wanted to get off at the next stop, that is, North Point Road. The car was then just making the grade, just going-up the hill at the curve when the car made a sudden curve. * * * <ppe ne:X£ thing we saw and heard his (Dan’s) head hit something, and we saw his cap fly across the car and he had slumped in his seat.” Carl Martin testified that he could not really see Theodore Dan because “Bill (Clark) was in his way, sitting alongside of him.

He did not see Theodore Dan do anything. The first he knew that anything had happened was when he heard a dull thud and happened to look over that way and saw Theodore slumped in his seat.” He further testified that the car, until it reached the hill at Oak Lawn Cemetery, had been going about twenty-five miles an hour. Thereafter it started to gather speed and “started swaying”; that is “it was just going from side to side.” This down grade extended about the length of two blocks, and then the car started “up a short grade and at the top there is a sharp turn to the left. At that curve, or approaching it, the street car made a sudden lurch.” He took note of this because, as he said, “Bill (Clark) had slammed against him and nearly was thrown out in the aisle.

It was almost at the same time that he heard the thump.” John Martin testified that when he heard the horn blow he saw Bill Louder, and he said to Theodore, “ ‘There is Bill now, we had better get off’ and Bill motioned to him to get off at the next stop. * * * He (Dan) raised to push the bell, but he did not get that far. * * * His hat blew off, and he swung around to catch his hat and he fell against the standard pole.” He also testified that the car was “going prejtty fast and when it reached the top of the grade it was going so fast ⁴⁰⁹ that the straps were hitting the side of the car, but the car lurched right before that.” Louder, who was in his automobile, testified that when he caught up with the street car and came alongside of it, he “blew his horn and attracted John Martin’s attention. * * * John turned around * * * and he motioned to John to' get off and John just waved back to him.” They went along a little further and Theodore, who was in the seat behind John, “started to rise in the seat and it appeared to him that Theodore’s hat blew off or Theodore turned around and reached for it and then slumped down in his seat.” He was sure that Theodore had not stuck his head out of the window. There were a number of passengers in the car at the time of the accident. Among them was one, Ernie C. Raum, who was seated in the third seat on the right side of the car. He testified that an automobile came up the road, “a roadster, with the top down, with the horn honking, and everybody seemed to be looking at the machine.

There was a boy sitting in the seat right in front of him, on the other side and this boy got up and waved his hands. The other fellow kept waving his hand at the boy. This was. the boy who was afterwards hurt. * * * The fellow in the machine was * * * hollering at the boys in the car. There was a couple of other boys, up in the front, of the car also hollering.” Raum was asked what happened then, and he replied: “Well, this boy, he gets up, and he waves to him and sticks his head out of the car over top of the rail, and there is a screen on the car so you could not stick your arms there, and he stuck his head over and a pole hit him and he fell right back in the car and sit there, and I picked him up.” This witness, got on the car at Eairmount Avenue and Wolfe Street, and he testified further, that, “as the ear got to where the accident occurred, it was, going at a regular rate of speed. * * * The car was not being operated faster than usual, it was going at a moderate rate of speed.

It was not going faster because it was going uphill at the time, just getting ready to’ make the curve. * * * At the time the accident occurred, there was ⁴¹⁰ no unnecessary swaying. * * * The noise was sort of a thud. * * * He did not. feel any lurch.” Ioseph A. Calder, likewise a passenger on the car, testified that, when the roadster pulled up, the driver of the automobile “called to this young gentleman in the front and waved, and the young gentleman in front who was killed did the same. . That is what called his attention to them. * * * When the street car bit the curve, Dan got up and looked out. There is a wooden pole there and it struck Dan a glancing blow and Dan fell in on the seat. * * *' The street car was running from eighteen to' twenty mile an hour * * * was not swaying from side to1 side,” and it “was not jostling him around in the seat one bit.” Gertrude I. Hughes, another passenger, was seated on the right-hand side of the car about three seats from the front. She observed all the boys; there were several boys together, three or four sitting in front of her, and the one injured was seated on the left-hand side of the car alone. “The boys were having a good time, laughing and joking and waving at girls as they went by, having a good time in general.” While this was going on, some one came up> in an automobile’.

The driver blew his horn, “and all of a sudden this boy, sitting by himself, without a moment’s warning, jumped up and leaned out of the car. * * * She heard the thud and he slumped right down. * * * She pressed the button, and the car came to an immediate stop.” Andrew Fedder, the motorman, testified saying: “Prior to getting a signal to stop’, the machine was going along with the car sixty-five or seventy-five yards alongside of the car. The driver was waving his hand. He did not pay any attention to the auto at that time because he was going down grade and was afraid something would come out in front of him. * * * At about the time he noticed the automobile, he was going between ten and fifteen miles. It is only a little grade about twenty-five yards long and then a level place about twenty-five yards long between the two hills, then he was coming into a curve.

The curve is about fifteen yards long from the time you hit the upgrade until you get up on ⁴¹¹ the level. He did not notice any swaying or lurching in any unusual manner. He was on time that night.” After stopping the car, the motorman “looked behind and saw some fellows helping another fellow. He asked what was the matter and that boy there (indicating) said: ‘He just got struck with a pole, he stuck his head out of the window.’ ” -The name of the boy who said this was not mentioned at this time.

The motorman did not know “where the accident occurred. He never heard a horn blowing. The first thing he knew some one gave him a bell and he figured somebody wanted to get off at Southern Avenue. Southern Avenue is around the curve. * * * The curve is not a real sharp curve, it is about medium. * * * He was going about fifteen miles an hour down grade and when he was coming to the other grade, he wTas putting air on and checking his car down to about nine miles an hour.

Coming into the curve, he commenced applying tho brakes.” J. H. Yanda, the conductor of the car, testified that he noticed the automobile as it came up beside the car, and that the boys in the car commenced to call and wave to the driver of the automobile. At this time his attention was withdrawn from the automobile by one of the passengers in the car, who had asked him a question, and when he looked again he saw “Theodore Dan lying back in the seat.” He went to him, somebody in the meantime pulling the hell, and asked: “What is the matter ?” In his testimony the conductor then stated: “One of the hoys standing in the front of the car, Johnny Martin, said: ‘He stuck his head out of the window.’ ” This statement, however, was denied by Johnny Martin. The conductor then helped to remove Theodore Dan from the car and place him in the automobile. He further testified that “the street car was just climbing a hill about twelve miles an hour and cut out to hit the- curve.

Just as we hit the curve his attention was attracted to Dan. The street car was not swaying or lurching immediately before that time. * * * The speed had not yet been reduced to nine (miles an hour). ⁴¹² It was reduced after they hit the curve. The motorman had to slow down to hit the curve.” Henry A. Lounge, another passenger on the car, was going down to the shore with a lady friend. His testimony was as follows: “The first he observed was after Theodore Dan got hit and was sitting in the seat slumped back. * * * The car was not going very fast. * * * He did not notice that the car was swaying or lurching more than usual.” In the trial of the case fifteen exceptions were taken to the rulings of the court upon the evidence, and one upon its rulings on the prayers.

The plaintiff offered four prayers, all of which were granted. The defendant asked for seven instructions; of these four were granted and three refused. Those refused were-prayers directing a verdict for the defendant. It is argued by the appellant that the first prayer of the appellee is