Taxicab Co. of Balto. v. Emanuel

Pattison, J., delivered the opinian of the Court. In this case an infant, Lester H. Emanuel, recovered a judgment against the defendant, The Taxicab Company of Baltimore City, in the Court below, for personal injuries suffered by him, alleged to have been sustained by the carelessness and negligence of the defendant’s agent in operating an automobile belonging to the defendant, on the 12th day of September, 1913, upon Greenmount avenue, or York road, near Windermere avenue, or Thirty-fourth street, in the City of Baltimore. There are in the record three bills of exceptions, two to the rulings of the Court upon the admission of testimony, these however, are waived, and one to the ruling of the Court upon the prayers. In addition to this exception, we are asked to review ’the ruling of the Court in refusing to grant the defendant’s application for a removal of the case.

Among the prayers offered by the defendant were three that asked for a verdict for the defendant; the first and third because of a want of legally sufficient evidence entitling the plaintiff to recover, and the second because of the alleged negligence of the plaintiff directly contributing to the accident complained of. We will first consider the ruling of the ²⁴⁹ Court in refusing to grant these prayers, and to do so it will he necessary for us to state fully the testimony in the case. The street upon which the accident happened is named in the declaration as Greenmount avenue, although it is generally spoken of in the testimony as York road. It runs north and south and upon it are the tracks of the City Passenger Railway Company.

The width of said street is thirty-nine feet and seven inches between the curbs; the distance between the curb on each side of the street and the tracks of the railway company is twelve feet and two inches, with a distance of four feet and five inches between the tracks. Windermere avenue, thirty-two feet in width between its curbs, intersects York road from the east, but does not cross it. Calvin avenue intersects York road from the west, the southern line of which is about one hundred and ten feet north of Windemere avenue. About ten feet north of what would be the north line of Windermere avenue, if it were extended beyond York road, is an alley, ten feet in width, intersecting York road from the west, but not extending beyond it.

Ethelwood lane, the next street above Calvin avenue, is three hundred and seventy-six feet north of Windermere avenue. The streets south of Windermere avenue are Henderson and Thirty-third streets, the former about one hundred and fifty feet and the latter about three hundred and ninety feet from said avenue. The plaintiff, an infant sixteen years of age at the time of the accident, residing with his father on the north side of Calvin avenue, was injured while attempting to cross in a northwestern direction from the east side of York road, at a point near the middle of Windermere avenue, to the west side of said road at a point where it is interested by the aforesaid alley. The automobile of the defendant, at such time, was coining south on the west side of York road—its lights were not burning, nor were the street lamps lighted at the time.

The plaintiff testified that he, on the evening of the accident ²⁵⁰ took a street car at Holliday and Fayette streets for his home on Calvin avenue; that when the car reached Twenty-fifth street he noticed, by the clock in front of the drug store, that it was quarter of seven, and that he had frequently observed that it took five minutes for the car to go from this point to Calvin avenue, and thus he fixed the time of his reaching Windermere avenue at ten minutes of seven, and he says it was then cloudy and getting dark; that he alighted from the front step of the car at a point about the middle of Winder-mere avenue and remained at this point until the car reached a point, where he saw it, a block away, between Calvin avenue and Ethelwood lane; that he looked twice up Windermere avenue and twice up and down York road before starting to cross the last-named street, and saw nothing coming, and “before he got across to the other curb the automobile struck him;” that when struck he was in the act of stepping from the south-bound track; that he did not see the automobile at all before it struck him; that Mr. Hull, the driver of the automobile, came back and put him in the automobile and took him to the Hebrew Hospital. Hpon cross-examination he testified that while crossing the street he again looked up York road, but saw no automobile or other vehicle, except the street car, and that had there been any he would have seen it, as there was nothing to obstruct his view; that he had no difficulty in seeing the street car between Calvin avenue and Ethelwood lane. William D. Burnite, a witness for the plaintiff, testified that he lived on the south side of Windermere avenue seventy-five or eighty feet east of York road; that he saw the boy start across the street, facing towards the alley, “and the automobile come down and hit him;” that it was in the evening about seven o’clock and was cloudy and getting dark, he at the time was seated on his porch; that the boy started across the street and was nearly over, just crossing the southbound track, when the automobile struck him; that when he started across the street, the car was out of sight; that he. ²⁵¹ did not Tear any gong rung or Tom blown preceding tTe accident; that “Te could not say Tow fast tTe automobile was going, but tTey went about two hundred feet after the fellow put the brakes on; that Te could tell when they put the brakes on by the way the automobile started to screech; that Te heard this screeching about the same time the automobile struck the boy; that the accident happened about a minute or a little over, after the boy got off the car; that Te first saw the automobile when it Tit the boy, or rather about two seconds before it Tit Tim, right at the time it Tit Tim; that he did not see the automobile approaching and simply saw the contact, the accident, it was going pretty fast, Te could not say how fact.” Robert Woods, produced by the plaintiff, testified that at the time of the accident he was standing on the York road in front of Mr. Lacey’s feed store, near the north corner of Henderson street; that Te saw the plaintiff get off of the car and after the car Tad passed some distance up the street, saw Tim start across the street “kind of on a bias, with his face towards the alley;” that it was cloudy and getting dark; “that at the time the boy started to cross the street he did not see any street cars or carriages or automobiles on York road; that the boy was on the south-bound track going across when the automobile struck Tim; that when he first saw the automobile it was up by Galvin avenue and the boy was, he guessed, about middle way of the street; that the automobile was coming real fact; that Te thought the boy could get across before it Tit Tim; that the left side of the automobile Tit the boy, and that after it struck Tim it went on down in front of Grunning’s store at the south side of Henderson street.” TTat Te 'Tad no difficulty in seeing the automobile at Calvin avenue, as there were no other vehicles on the streets and that there was nothing between the plaintiff and the automobile to prevent Tim, while crossing the street, from seeing it.’ Frank Blair, when called by the plaintiff, testified that Te was at the time of the accident on York road, in front of ²⁵² Windermere avenue, that when the car was between Calvin avenue and Ethelwood lane the plaintiff started to cross the track, and was between the two .tracks when the automobile struck him; that the automobile was coming towards the city, and it was the front of the automobile that struck him; it then came down as far as Henderson street and stopped; that he “didn’t hear any horn blown or noise of any kind.” Benjamin Williams, plaintiff’s witness, testified that he was at the time of the accident with Blair in front of Winder-mere avenue on the west side of York road; that after the car from which the boy had alighted passed he saw him standing on Windermere avenue, about middle way of said avenue, back from the track about five feet, and when he started to cross, the car was about Calvin avenue, somewhere near Ethelwood lane; that “the boy was walking at a pretty good gait, he seemed like he was in a hurry going home,” that it was getting dark; that he saw the machine when it passed Calvin avenue, he saw it on account of the lights in the store; that then he never paid much attention to it, didn’t know whether the machine had stopped; that in that time the boy started to cross the street, and when the machine was about two feet from him he heard somebody holler, “Hey, look out;” the boy was then coming across the street, and he kind of turned like that (indicating), and just as he turned to get out of the way the machine struck him and knocked him over; that the left-hand side of the machine struck the boy; “that he heard no noise or anything until he heard this shout; that the boy was walking across the street kind of catercomered, toward home;” that he was only about eight feet from the boy when the accident happened; that at the time the boy started to cross he, the witness, “didn’t see any street cars or buggies or wagons or automobiles either coming up or going down; that after he saw the car pass the store he did not see any more then until the automobile struck the boy;” that when he saw the automobile it was “right at the comer of Calvin avenue, that it could not have come out ²⁵³ of Calvin avenne because I seen it when it was passing the store,” which was above Calvin avenue. Upon cross-examination he testified that he could not say whether the lights were burning in the car; that he did not have any trouble seeing the automobile when it passed the store above Calvin avenue.

Eva Emanuel, sister of the plaintiff, who was at the time fourteen years of age, testified that she was between Gorsuch avenue and Thirty-third street when her brother passed her in the car, and she walked up a little faster to meet him when he got off; she saw the car stop at "Windermere avenue, as it had its lights burning; she was then at the drug store at the northwest corner of Thirty-third street and York road; she had no difficulty in seeing this distance; she saw her brother after the car had passed standing on the east side of the street, at that time she was almost to Gunning’s; that he, after looking carefully to see if any vehicles were coming, started across the street, and the next thing she saw, he was knocked down; that she' did not even see the machine coming and saw it just as it knocked him .down; that she was then between Lacey’s and Gunning’s. Fred G. Kitchen, who was 'at the time of the accident an employee of the defendant company, but not in its service at the time of the trial, testified that on the night of the accident he had a conversation with Eva Emanuel at the company’s garage; that he asked the little girl if she had seen the accident, and she said she had, that she saw her brother get off the street car and run behind it to get across the street; that she yelled to him and he stopped, and if he had stayed still the car would not have struck him, but he started a second time and the car struck him and knocked him down. This conversation to which he testified, however, was denied by Eva Emanuel when upon the stand. This witness was a defendant to the suit, but at the conclusion of the case a prayer was granted taking the case from the jury so far as he was concerned. ²⁵⁴ George E. Hull, called to the stand by the defendant, testified that he was in the employ of the defendant taxicab company on September 12th, 1913, and was at the time of the accident driving the automobile of the defendant, that he turned into Greenmount avenue from Holman avenue; “that Holman avenue is at least a mile north of Ethelwood lane, and he came straight on down the York road; that as he approached AVindermere avenue he saw a street car coming north; that the first he saw of Lester Emanuel was when he came from behind the car, which had started, and he was on his way across the street; that he did not see him get off the car; that it was then between six and seven o’clock, and you could tell the evening had started; that he did not have any trouble in distinguishing any objects within a reasonable range any more than you would in the day time, except you have a condition that is between daylight and dark; that when Lester Emanuel came from behind the car, the car had started off, and the front of the automobile did not vary five feet from where the motorman stands on the north-bound car; that the front platform of the car was then nearer to the northern boundary of AVindermere avenue than to the southern boundary; that he would not say he was directly abreast of the motorman, it was hard to state exactly,as he remembered coming to the car and seeing the boy just about the same time; that the front wheels of the automobile were at the front or near the front of the car; that at that time Lester Emanuel came .from behind the car and started across the street; that he did not go across on a straight line, but in a direction generally west by north, “and as he came from behind the car and when he was first seen by the witness, he hollered to him and “at the same time he, the witness, reached over, threw out his clutch, and reached down to throw out his gear, and throw on his brake;” that the boy then stopped between the north and south-bound tracks, and seeing this “he relaxed and let in his clutch and left his gear alone and kept on ahead;” that' “when the boy stopped ²⁵⁵ lie thought that was a signal for him to' go on, that he had the right of way; that after the boy started up again, after stopping, he, the boy, hurried across, that is, he tried to get across; it. was then that he was struck.” He was then asked “after he left his position between the tracks and started hurriedly across the street, could you have avoided the accident?

A. Ho, sir.” That “the boy was hit by the left side of the front of the car; that the boy ran into the car, the car did not run into him; that after Emanuel ran into the automobile he could not place exactly where the car stopped, but it stopped without damage, as he took the time to throw off the gear and stop -with his foot brake, he turned on his emergency brake and held the car from moving; that he did not put on his emergency brake before he stopped because he did not realize the boy was going to be struck; that he first knew the boy had run into the car when he heard the crash;” that after the accident he got out of his car and went back and found the boy’s leg broken and he took, him and put him in the automobile, and upon the suggestion of his little sister, took him to the Hebrew Hospital. Upon-cross-examination he testified that he had not lighted the lamps on his machine before the accident; that he lighted them afterwards at Gorsuch avenue, five or six blocks away; that “he was coming down right on the right-hand side of the road, on the side that is provided for vehicles; that he was not running on the car tracks, but was on the west side of the car tracks; that'the distance from the most eastern side of the automobile to the most western rail of the western track was about that much (indicating approximately three feet, six inches) ; that when he first saw the boy he was in motion, walking, and after the boy stopped and they started o>n again, he had a hurried gait, a gait one would assume in getting across in front of a moving vehicle; that he could not say what the speed of the machine was, but was an average city or suburbau speed with a clear road.” Valentine Wyroba, produced by the defendant, testified that he also worked for the defendant company and was in ²⁵⁶ the automobile with the witness Hull; that when he first saw the boy he was coming from behind the car, about ten feet from the automobile; that he was going across the street, and both he and Hull hollered to him and he stopped and then went on again and then they struck him; that the street car passed them a couple of seconds before the automobile struck the boy; that the automobile was going about 10 miles an hour. To entitle the plaintiff to recover there must be some act of negligence, either of commission or omission, on the part of the defendant or its servant, and it is necessary that there be some evidence indicative of negligence in the circumstances surrounding the occurrence, either antecedent to, or coincident with the happening of the accident, and the burden is upon the plaintiff to show such negligence. Havermale v. Houch, 122 Md. 87 ; Schier v. Wehner, 116 Md. 554 .

In our opinion there is found in the facts stated evidence legally sufficient to be submitted to the jury tending to show negligence on the part of the defendant in operating its automobile at an excessive rate of speed. The witness Woods in his testimony stated that the boy was on the south bound track going across when the automobile struck him; that when he first saw the automobile it was up by Oálvin avenue and the boy was then, he thought, about the middle way of the street; that he thought the hoy