Storrs v. Hink

Parke, J., delivered the opinion of the Court. The plaintiff, Nevada Marie Hink, is twenty-nine years of age, married, and a resident of Catonsville, a suburb of Baltimore City. On Saturday, March 25th, 1933, she went to the home of her aunt, Ivy F. Baker, wife of Harry J. Baker, who lives in Catonsville, to go to Baltimore with them in their five-passenger four-door Chevrolet sedan. The three were the only occupants of the automobile.

Mr. Baker drove and Mrs. Baker was on the front seat with him, and the plaintiff was alone on the back seat. The automobile was driven east on Edmondson Avenue, and no stop was made, until a store near Kingston Road was reached, and the automobile stopped a few minutes before noon in order to let the plaintiff do some shopping at the store. Edmondson Avenue at this point may be said, for the purposes of this case, to run east and west, with a width of sixty-three feet and five inches between the curb on the north side and the property line south of the railway right of way. On the north side of the avenue is a footway of seven feet in width.

The space south of the line of this sidewalk is used as a public highway and the right of way of the United Railways & Electric Company of Baltimore, a corporation engaged in the operation of an electrically propelled street railway system. The highway is immediately south of the sidewalk. Its width is twenty-five feet, and its metaled surface is macadam, with a con ¹⁹⁷ crete shoulder along the railroad right of way. The right of way of the railway binds on the southern line of the highway and is thirty-one feet and six inches in width.

A double track is built on the right of way of the railway company, which owns in fee simple the portion on which the east-bound track is located, and has an easement on Edmondson Avenue for its westbound track. According to a plat introduced in evidence by the plaintiff for the purpose of showing the locations and distances involved, the northern rail of the west-bound track is four feet and nine inches south of the southern line of the macadam •highway or the roadway of Edmondson Avenue. The north shoulder of the west-bound track is on this space of four feet and nine inches, and slopes from the tee rail tracks of the railway to the concrete shoulder of the highway, and is roughly surfaced with dirt and stone ballast. Immediately south of this are the tee rail, stone ballasted, double tracks, measuring five feet four and one-half inches in extreme width, and separated by a center ballasted strip of five feet in width.

The tracks are similar to those of a steam railroad in the country. A border strip of eleven feet in width south of the east-bound railway track takes care of the projecting ends of the ties and the ballasted slope from the bed of the track. A highway called Kingston Road enters Edmondson Avenue from the south after crossing at grade the railway’s right of way with its surface level with the top of the rails. Rock Glen Road is the next highway to the east, and it forms a junction with Edmondson Avenue, south of the railway track, where Edmondson Avenue has similarly crossed the right of way, and, turning to the northeast, proceeds south of the railroad, while the north fork of Edmondson Avenue bears to the northwest and north of the railroad, and is called Greenwich Avenue.

On the north side of the westbound track and directly east of the Edmondson Avenue crossing there is a west-bound car stop. The next westbound car stop is two blocks to the west at North Bend Road which is west of Orpington Road, a street which enters Edmondson Avenue from the north, and there ends ¹⁹⁸ with its center line about one hundred and seventy feet from the west side of Kingston Road, when prolonged, as is shown by the plat. The point where the automobile in which the plaintiff was a guest had stopped, on the south side of Edmondson Avenue, was placed by her at about five feet west of the west line of Kingston Road. The front of the automobile was facing east, with the two right wheels on or near the line between the concrete shoulder and the railway right of way; and from that point the railway tracks extended in an approximately straight line to the east for a distance of about two hundred and fifty feet, as shown by the plat, and then curved to the right or northeast, affording a view of an approaching street car for a distance of about four hundred feet.

After the automobile stopped, the Bakers remained inside, but the plaintiff started to open the right rear door and found it hard to open, and had to use her knee to force the door by pushing, which took her a couple of seconds. She closed the door tight, crossed to the north side of the street, made a purchase of cigarettes and a bag of candy and walked hurriedly back, with the two small packages containing her purchases in her arms. She looked east along the track and saw no street car, and then walked back of the automobile, whose motor had been kept running, and thence to the right rear door, and before she turned to open this door she looked and again looked as she put out her left hand to take hold of the handle to open the door, and there was no car in sight. She then turned and placed her right foot partly under the fender, partly on the shoulder and cinders of the road, and her left foot out a couple of inches from her right foot to brace or balance herself to open the door, which was built to swing back.

She tried with her left hand and could not get the door open. She was then facing the automobile with her back to the track a couple of seconds, when her aunt, hearing her at the door, turned completely around in her seat to help. The plaintiff said she had not moved an inch from the time she took her position at the door, “when,” in ¹⁹⁹ her words, “all of a sudden I was caught in a trap, 1 was hit on the left side by the street car, my whole left side was hurt.” She swore she was thrown against the automobile and to the ground, and the rear wheels of the street car caught her left leg and cut off her foot. She had a big bruise over her heart and many and severe bruises on the left side of her body, over the left side of her back, over her left side and left buttocks; her throat on the left was cut so as to require four stitches.

From the time she reached the automobile after her shopping until she was struck, no warning or signal was given by those in charge of the street car. Nor did she either hear or see the approaching street car. Her estimate of time was that from when she reached the rear of the automobile until the happening of the accident about fifteen or twenty seconds had passed, and that of this period she was at the door from about five to ten seconds. The testimony of the uncle is chiefly in corroboration of the plaintiff’s story.

He, however, saw the approaching railway car when the plaintiff was standing at the door of the automobile. The car was then estimated by him to be about two hundred or two hundred and twenty-five feet away, and plainly visible to any one in the position of the plaintiff. The uncle turned his head and put his foot on the accelerator to get ready to make a quick start, and, then, looked again down the tracks to the east and observed that the west-bound street car was sixty or ninety feet away. Although the uncle testified that he believed the plaintiff to be in grave peril, and saw her tugging at the door, he made no effort to warn her, nor any effort to move his automobile away, but remained mute and inactive until the front of the street car passed her and she was struck by the body of the street car.

When cross-examined, he said he would figure that “the front doors of the street car had passed the plaintiff before she was hit,” and he corroborated her in the statement that plaintiff never changed her position after she assumed it at-the automobile door. ²⁰⁰ The other witness for the plaintiff who saw the accident was her aunt. While waiting for the return of her niece, the aunt was engaged in looking at some pictures, and she did not observe any of the details of the accident until her attention was aroused by hearing some one at the handle of the door trying to open it. Mrs. Baker then looked back and saw the plaintiff, and turned around to help her open the door by hitting the door with the palm of her hand. While so engaged, the aunt suddenly saw the street car crossing Kingston Road, and the plaintiff, who had been standing perfectly still, struck on the left side by the shoulder of the street car.

The aunt further testified that the window of the automobile where her husband sat was all the way down and her own window was “mostly all the way down,” and that no bell or signal was sounded by the approaching street car. In addition to this testimony, the uncle testified that when he first saw the street car it was running at a “rather high rate of speed and just swinging backwards and forwards,” and that the car did not slow up until it had passed his automobile. At other points in his testimony, his descriptive terms were “swaying motion of car,” “rocking back and forth;” and, with respect to its progress, “pretty good speed.” There is no evidence that this familiar movement of a street, railway car in motion was unusual, excessive, or attributable to any defective condition of the equipment, track, or roadbed. Nor did the uncle attempt to express an opinion as to the rate at which the street car was traveling.

One witness for the defense estimated the rate at ten or fifteen miles an hour, and, on cross-examination, stated that he thought the rate was between fifteen and twenty miles an hour. Another estimate by a witness for the defense was twenty miles, and the conductor expressed his opinion that the rate was from eight to ten miles ,an hour. The motorman was the operator of the car and was in the best situation to know, and he testified that he had cut off the electric current about half way between Kingston Road and Rock Glen Road. His opinion was that he was going at fifteen ²⁰¹ miles an hour when he first saw the plaintiff and decreased the speed to ten miles when the accident happened.

His further testimony, which was not contradicted, was that the street car was running on practically a level stretch, and that the cars are geared to do twenty-two miles on a level. The opinion of the witnesses in reference to the distance the street car traveled from the point where the plaintiff was struck varies from fifty to three hundred feet; but those who testified to the greater distances qualify their estimates by fixing the point of stop to be at Orpington Road, which, according to the plat, could not be more than one hundred and seventy feet. The significance of this distance, with reference to the speed of the street car, is lessened by the proof that the motorman did not use the emergency brake, and did not apply a brake until after the car had passed the plaintiff and he had heard the noise of the blow on the side of the car. The motorman was the only witness who gave any evidence as to the space in which his car could be stopped.

His testimony was that at the rate of ten miles an hour the car could have been stopped, in his judgment, in about sixty or seventy feet; at the rate of fifteen miles, in about eighty or ninety feet; and, by the application of the emergency brake, in probably ten feet less than these distances. The differences in the estimates of distance between the same points are another illustration of the frequent inaccuracy of this kind of testimony, and must yield to the unchallenged and undisputed measured distances of a survey by a competent person, and then by him accurately delineated on a plat, as the plaintiff had done in the action at bar. So the testimony of distances, which is based on memory, estimates, or casual observation, must yield to that which is based on actual measurement or reference to the definite data of an accurate plat. La Pointe v. Boston, etc. R. Co., 182 Mass. 227 , 65 N. E. 44 ; Sweat v. Boston, etc. R. Co., 156 Mass. 284, 287 , 81 N. E. 296 ; Schell v. United, Rys. & Electric Co., 150 Md. 663, 666-668 , 133 A. 598 .

Accordingly, the court in this opinion will ²⁰² use the distances shown by the plat of the scene which was offered in evidence by the plaintiff, rather than the testimony of witnesses, whose estimates did not profess to be accurate. Other testimony on the part of the defendant tended to show that the motorman had stopped and let out a passenger at the Rock Glen Road car stop, and then started the car and traveled at the rate of fifteen miles an hour on a practically level grade until, nearing the Kingston Road, he reduced the speed to ten miles an hour for that crossing, for which he sounded his gong. He first saw the plaintiff about thirty-five feet east of the crossing, moving rapidly across Edmondson Avenue through the traffic, and he gave three or four taps on the gong, and ceased when he saw her stop on the concrete shoulder adjacent to the right of way. When the plaintiff reached the rear of the Baker automobile, the motorman observed her turn east on the shoulder of Edmondson Avenue, and brake a few steps on the shoulder, facing and looking at him, and walk to the door of the automobile, and then turn to the door, where she was in a position of safety on the shoulder of the road beside the automobile.

The car was then about ten feet from the plaintiff, and she remained in this attitude, until the front of the car passed her, without making any movement to open the door or for any other purpose. The motorman observed nothing further until he heard a noise as though something were slapping against the side of the car and he applied the brakes and stopped about sixty feet west of where the plaintiff was found lying. The motorman and conductor did not see the accident, but there- was testimony on the part of those who did. Their testimony tended to prove that the accident happened in the manner described by Willi May Watkins, whose husband had parked his automobile ten to fifteen feet back of the Baker automobile but in line with it, and had then gone to a shop on the north side of Edmondson Avenue.

Mrs. Watkins remained in the automobile, and, after she had seen the plaintiff crossing the avenue, Mrs. Watkins ²⁰³ looked for her husband, and then, turning her attention to the plaintiff, she thus testified “She was standing by the door of her car. She had her hand on the door as if she was trying to open it, and she just moved her body just this way (indicating) as you usually do when you open the door, and the car hit her hip and turned her around. I don’t know whether or not she stepped back, but I know she moved her body. Whether she moved her foot or not I can't say.

The street car, I think, struck her hip and turned her around, if I am not greatly mistaken. Her body I think was thrown. I think the car threw her. She turned completely over and her foot went under the rear truck of the car.

I know the vestibule of the car had passed her. That is why I was holding my breath hoping she would stand still until the rest of the car went by. She did not fall right where she was struck. Where her body finally came to rest I can’t just say where —back of their car.

Just her feet were over the rails; her body was not.” To quote further from the