State v. Washington, Baltimore & Annapolis Electric Railroad

Offutt, J., delivered tbe opinion of tbe Court. Paul Kolish, aged four years, two months and seven days, on July 7th, 1924,o was struck and killed by one of appellee’s railway oars, as it was proceeding east along! Portland Street near Emory Street, a public highway in Baltimore City. On August 21st, 1924, this suit was brought in the Baltimore City Court under article 67, Bagby’s Code, by John Kolish, father of Paul Kolish, to recover compensation for the loss which he suffered through the death of his son, which he alleged was caused by tbe wrongful acts, neglect and default of the appellee.

Tbe case wa's in due course tried before the court and a jury, and the verdict and judgment being for the defendant the plaintiff appealed. The only exception found in the record was taken 'to the action of the trial court in granting the defendant’s first, third, sixth, and ninth prayers. The defendant’s first prayer submitted the proposition that the equitable plaintiff could not recover if his infant son failed “to use such care and caution as the jury may find that a reasonably prudent person of his age would have exercised under like circumstances, and that if the jury shall further find such failure contributed to the happening of the accident mentioned in the declaration.” ⁴⁴⁶ Its third prayer instructed the jury that-if the equitable plaintiff “failed to exercise such Care as a reasonably prudent person would have exercised under like circumstances, in allowing his infant son, Paul Kolish, to be unattended upon the streets at the time of the accident, and that such failure to exercise such care contributed to the happening of the accident,” he could not recover. Its sixth prayer stated that if “Paul Kolish, the infant son of the equitable plaintiff, in attempting to cross the line of tracks of the defendant at or near the intersection of Portland and Emory Sreets, walked or ran into the side of one of the cars of the defendant, the verdict of the jury should be for the defendant.” Its ninth prayer instructed the jury that if they should find that Paul Kolish would not have been injured “if the mother of the said child had used reasonable diligence under all the circumstances to prevent the said child from being on the highway known as Portland Street without any one to guard him, and that such failure to guard and protect said child directly contributed to the happening of the accident,” their verdict should be for the defendant.

These four prayers involve the hypothesis that if the negligence of the injured child or that of his father or mother directly contributed to the accident which caused his death, the equitable plaintiff cannot recover therefor. The appellant denies however that that conclusion is a necessary legal consequence of the fact that the negligence of the child or his parents directly contributed to the accident, because, he says, even if their negligence did contribute thereto, it would not bar a recovery, if the motorman operating defendant’s car saw or, by the exercise of reasonable care, could have seen the child’s peril resulting from such negligence in time, by the exercise of ordinary care, to have avoided striking him, but failed to do so. The defendant in reply to that contention says, that there is no evidence in the case legally sufficient to show (a) that it was negligent at all, or (b) that its motorman saw or by ⁴⁴⁷ the exercise of ordinary care could have seen the child in time, by exercising ordinary care, to have avoided striking him, and that therefore, even if these four prayers were erroneously granted, the plaintiff was not injured because be was not entitled to recover in any event. From this statement of the questions presented by the appeal, it is apparent that any review of tbe rulings of the lower court in respect to those prayers involves an examination and an analysis of the evidence relating to them.

The plaintiff offered two witnesses who actually saw the accident, Hyman Cohen, who was delivering -soda, water from a truck parked on the south side of Portland Street, and Ellsworth Marshall, a boy, who was, when the accident happened, some ten or eleven years of 'age. Cohen testified that he had delivered some eases of soda water at 084 Portland Street, and was on his way back across Portland Street to bis truck, when he saw one of defendant’s cars bound east along Portland Street approaching, and while he stood in the west bound tracks waiting for it to go by, be saw it strike Paul Kolish; that it was going at that time about eighteen miles an hour, and that it struck him with the left side of the fender and carried him on “over Emory Street,” that it struck him when it was at a point opposite the third house west of Emory Street and carried him to the third house east of Emory Street before it came to a stop; that the last time he saw Paul before the accident he was on the pavement where the witness served the soda water, and he did not know how he reached the place where he was hit by the oar. On cross examination he testified that while he saw the car approaching he did not hear it; that the ear hit the child, hut whether the child was at that time stationary, or going towards the oar, he did not know; that he wa's about seven or eight feet away from tbe child when be Was struck, and was actually looking alt him then, but that be bad not noticed him in the street before that. He -also gave this testimony: “Q. Do you know whether or not the car hit the,child, or the child walked into the car? ⁴⁴⁸ A. Well, I believe the car — well, the car bit him, I have seen it, I have seen the car bit him.

Q. But you don’t know whether the child was walking into the car or not, do you ? A. I have not seen him the way he comes to (the ear, I have not seen it. Q. You never saw th'at? A. Ho. * * * Q. But you do not know Whether the child did not walk into the car or run into the ear ?

The oar struck the child.” Ellsworth Marshall gave in substance this testimony: He knew Paul Kolish. His little sister played with him. At the time of the accident he was sitting in a child’s wagon on the north side of Portland Street, watching Paul at play. He saw him throw a ball across Portland Street, and go over after it.

When he got it he threw it back across Portland Street, and started back himself. On hi® way back he dropped his sandal and he stopped and turned back and was hit by a car. The car was comingl fast, “faster than they usually run” and he heard no bell, whistle or other signal of its approach. The fender of the car struck Paul, in “front on the left side of it.” On cross examination he said that Paul’s mother was' not on the street but was in her house, and he then gave this testimony: “Then you saw this little Kolish child throw the ball across the street ?” “Yes, sir.” “And he went over and got the ball?” “Yes, sir.” “And he came back, is that right?” “He threw it back, and then he run after it, and he dropped his sandal coming back.” “Where did he drop his sandal, if you saw him?” “About a foot from the car'track.” “On which track, the inbound or the outbound?” “I mean a yard.” “A yard from where?” “Erom the car track or street, either one; I mean the curb; 1 can not remember which it was now.” “Which curb was it now?” “On the other side of the street.” * * * “Which way was he coming, towards you or away when he was hit by the train?” “He was coming that way (indicating), and then he was going and I never heard a whistle or nothing, and then I seen him get hit by the train.” “Outside of the whistling question, was he walking or running towards the car?” “Ho, the oar was running towards him.” “Did he stop ?” ⁴⁴⁹ “Did Paul walk or run towards the car ?” “He was running and the car was coming real fast.” “Did he come in front of the oar?” “Did the hoy get in front of the car, or did he hit the side of the oar ?” “The hoy never hit the car.

The oar hit him.” * * * “The hoy had not gotten into the track then?” “Ho, sir.” “He had not?” “Yes, he was in the track, and then the fender caught him, the front fender.” * * * “AVhere was little Paul when you first saw the car ?” “He was just starting to run across and the car Was coming real fast.” “Did he get across for his sandal?” “Ho, sir.” "* * * * “And you think he got in front of the car before he was struck?” “Yes, sir.” “In the track?” “Ves, sir.” In addition to this testimony, John Kolish the father testified that he was away at work when the accident occurred and knew nothing of it until it had happened.' On behalf of the defendant, Edward J. Hesse, the motorman operating the car which struck the child, testified that he did not see him before the accident, and did not know that the car had struck him until he heard a colored boy scream; that he had a clear view ahead from his position on the right side of the car, and could also see on either side; that the child did not run in front of the car. that at the time he was going about eight miles an hour and that, although he could see the sidewalk on both sides of the street, he saw no children anywhere as he approached Emory Street, that he did not think he sounded the bell, because there “was nothing in the street to sound it for,” that he did not see the little hoy ; he was not in front of the ear and he did not know where he came from, and when the train came to a stop the front of it was about the middle of Emory Street. Edward R. Burns, the conductor in charge of the car, was on the rear platform when the accident- happened and saw nothing of it. Joseph Bowness, at the time the accident occurred, was looking from the third story of 630 Portland Street, and he testified that he saw the child run into the street after a ball, and “right in the side of the car -at the steps,” and ⁴⁵⁰ tbait the train at the time was running' about eight or nine miles an hour. Further' testifying! the witness said: “The train was almost in front of the saloon comer when the little boy ran off of the curb ?” “The child was already in the street when he started to run.” “Where was he in the street?” “He was between 632 and 634.” “Hot on the sidewalk, but in the street?” “Yes.” “And while he was in the street there the train was coming along?” “Yes, sir.” “That is correct, isn’t it?” .“Yes.” “And then he ran out into the train?” “He ran right into the car.” John B. Wright, who also saw the accident from 630 Portland Street, gave this description of it: “Well, I saw the car coming east on Portland Street.

I was sitting on the north side of the street. The boy ran across from the north side to the south, and he got about half way between the tracks, I think.” “Which tracks?” “The eastbound track, and the car knocked him and flipped him over, you know, and I can not tell exactly whelther the wheel ran over the child or not, the first wheel, but the body of the child was underneath of the train, and his head was. sticking out on the other side of the wheel, and it drug it down the street.” * * * . “Do yon know what part of the car struck him?” “Well, I should say the left end, the left front end of it, right on the left side of the bumper.” “Do you know whether the child walked or ran toward the car ?” “He ran.” “How fast was the car coming?” “I should think about twelve or fifteen miles.” Jacob Berlin, a passenger on the car, testified: “As near as I can recollect, it was on the comer I saw a store, and there was some woman and somebody else sitting there at the store. This child ran off the house next door to the store, not the store, there was somebody in the house, and the child ran right over right into the car: It just made me sick and I left. If he would not have gotten my name, I would not have been here now. * * * The ear was going very slow.

He had just come around the curve at Fremont Street, and he had just come around that curve. In my judgment there ⁴⁵¹ was no way in the world that the motorman could have seen it. * * * The child ran right out of the house. It seemed as though he ran right ahead to his death. He run out of the house, off the porch, off of that little step and run right into it.

Just, as you would say, he run to his death.” * * * “How fast was the'train going?” “Well, I would judge it Was going about ten miles an hour.” “Do yon think the little hoy was going about ten miles an hour1?” “That I could not tell you, how fast the little child was running.” “I know the thing happened in a second; that is all I ean tell yon. It happened so fast, before I could turn around.” In rebuttal Mrs. Tlolish testified that when the accident happened she was not on the street; that she had left “him,” presumably Paul, sitting on the steps-, when she heard her little baby cry and had gone into the house, and that when she came back the accident had happened. This is in substance all the evidence material to 'the issues in the ease, and we will first consider it in connection with the contention that it did not furnish legally sufficient evidence of primary negligence on the part of the appellee. Taking all the evidence tending to support the plaintiff’s claim, together with such inferences as might naturally and legitimately he drawn therefrom, the jury, if they believed it to he true, would have been justified in finding that just prior to the accident the child was playing in the bed of Portland Street, running hack and forth across it after a ball, that when he was struck by defendant’s car it was running at about eighteen miles an hour, “very fast,” “faster” than appellee’s cars “usually run”; that he was at the time he was struck in front of it, and that it gave no warning by bell, whistle or other signal of its approach.

Abstractly, neither the speed of the car nor the failure to give reasonable audible warning of its approach was necessarily negligent, -although it may have been so under the circumstances of this case. Negligence is relative and comparative (20 R. C. L. 25), and cannot he conceived apart from the circumstances accompanying the act with respect ⁴⁵² to which it is asserted. As was said by Judge McSherry for this Court in Cooke v. Balto. Traction Co., 80 Md. 554 ; “Negligence is essentially relative and comparative, not absolute.

It is not even an object of simple apprehension apart from the circumstances out of which it grows. As these circumstances necessarily vary in their relations to each other, under different surroundings they inevitably change their original signification and import. Hence it is intrinsically true that those things which would not under one condition constitute negligence, would, on the other hand, under a different, though not necessarily an opposite condition, most unequivocally indicate its existence. Thus an act which would have been neutral or indifferent when street cars were drawn by horses at a comparatively low rate of speed, and could consequently be readily brought to a stop as occasion required, would become culpably negligent since the change of motive power and the great acceleration of speed incident thereto under the rapid transit system.

The existence of negligence is therefore to be sought for in the facts and surroundings of each particular case.” Again in United Rys. v. Watkins, 102 Md. 267 , it was said: “Negligence, both primary and contributory, is essentially relative and comparative, and not absolute. Whether it exists or does not exist in either form in a, given case, must necessarily depend upon the circumstances of that case. In every instance it must in the last analysis ho some breach of the duty owed by one person to another; and as the duity, whose breach is relied on a,s actionable negligence, varies under different conditions, the conditions must be known before negligence can be predicated of any act producing an injury. * * * A street railway company has no exclusive right to the use of a public highway in a city for the movement of its oars and possesses no greater or superior right to use the street than is enjoyed by any individual apart from the mere franchise to lay its rails thereon. That franchise in no way exempts such a company from 'an imperative obligation to exercise due and proper care in propelling ite cars to avoid ⁴⁵³ injuring persons who have an equal right to use the same street a's a thoroughfare.

Inasmuch as the right of the individual to use the street is co-extensive with the like right of the railway, each, as a consequence, owes to the other precisely the same duty to avoid an injury; and the railway company ha's no more right carelessly Sto run its ears along its tracks than the individual has carelessly to cross or traverse them.” And in Schell v. United Railways, 144 Md. 531 , this Court., «through Judge Adkins, said: “Negligence is essentially relative and comparative and depends upon the circumstances out of which it grows. As these circumstances necessarily vary in their relation to each other, under different surroundings they inevitably change their original significance and import. Hence it is intrinsically true that those things which would not under one condition constitute negligence, would, on the other hand, under a different, though not necessarily an opposite condition, most unequivocally indicate its existence.” So that the question here is whether negligence can be inferred from the manner in which the appellee’s agents operated its car