United Railways & Electric Co. v. Cloman

⁶⁸⁴ Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment against the appellant in favor of the appellee for injuries alleged to have been sustained by the latter, by reason of a car of the railway company being driven against the wagon in which she was riding on Federal street, in the city of Baltimore. There are twelve bills of exception in the record which will for the most part be considered in th.e order they are presented in the brief of the appellant. i. The first and second exceptions were taken to the ruF ings of the lower Court in admitting two receipts which were given to the company by the plaintiff’s husband, through his son Frank Cloman.

Mr. and Mrs. Cloman, who live in Baltimore County, had been to market in the city on Saturday, October 20th, 1906. They started home going out Federal street, in a one horse wagon about eleven O’clock at night. While driving easterly on the track of the appellant they were run into from the rear and both were violently thrown out of the wagon and injured. The theory of the plaintiff is that they were struck by a car of the defendant, but the latter did not admit that the injury was so occasioned.

The plaintiff and her husband were unable to testify, of their own knowledge, what had caused the injury, as they were rendered unconscious. They had a chicken coop in the wagon, which they used as a seat, and also a number of articles when the accident occurred. On Monday, October 22nd, Frank Cloman went to one of the barns of the defendant and received his father’s horse through Mr. DeMoss, who was admitted to be a “special agent” of the defendant, and who directed the party in charge of the horse to deliver it to Frank. Mr. DeMoss also went with him to another barn of the defendant and ordered the employees there to deliver to him the chicken coop and some other articles which were in the wagon.

The plaintiff gave the defendant notice to produce, at the trial, the receipts given for the horse and goods,-respectively, which Frank Cloman had signed when he received them. The defendant produced them, and Frank testified they were written ⁶⁸⁵ by Mr. DeMoss and signed by him, but the defendant objected to the admissibility of them in evidence. One of them reads, “Baltimore, October 22nd, 1906. Received of the United Railways and Electric Company of Baltimore, 1 bay horse, 1 horse blanket, 1 set of single harness with both breeching straps broken.

Taken charge of after a collision with 931 car, Federal street line, Oct. 20, 1906. (Signed) James F. Cloman, by J. F. Cloman, Jr.,” and the other described the other articles, and concluded, “Taken charge of Oct. 20, 1906, in collision with 931 car, Federal street line.” We see no reason why those receipts were not admissible. They were unquestionably some evidence tending to show the theory of the plaintiff, that there had been a collision between one of fhe'cars of the defendant and the wagon, inasmuch as it was shown by them that the horse and contents of the wagon were taken possession of by the defendant. Unless there had been such collision, there is no possible reason suggested for the defendant taking possession of the property.

Those in charge of the barns surrendered them on the order of Mr. DeMoss and, although his powers as “special agent” are not stated, he prepared the receipts for Frank Cloman to sign and the defendant had them in its possession. The receipts were at least admissible to corroborate the witness, that he had received the horse and goods from the custody of the defendant, and when it was shown that DeMoss wrote them and they were still in the possession of the defendant his authority to take them could be implied. If there was any question about the effect of the parts of them that refer to the. collision with car 931, that ought to have been raised in some way other than by a general objection to them. But inasmuch as DeMoss had such control of the horseandother property as to direct the surrender of them to Cloman, and he had written the receipts which were in the possession of the defendant, at the time of the trial, there could be no valid reason for excluding the statements in them which explained how the defendant came into the possession of the property.

There is not only no suggestion that any one rep ⁶⁸⁶ resenting the defendant had at any time before the trial objected to the statements in them, as to how the defendant came into possession. of the property, but they were kept in the possession of the defendant and its “special agent” had written them. If Mr. Cloman, Sr., had sued the defendant to recover the property, the receipts would have been binding on him, and, under the circumstances stated, we can see no reason why they should not be on the defendant. They would not have furnished .the defendant a complete record without some reference to how the property came into its possession,’ and there was ample evidence to establish, prima facie, that DeMoss had authority to do what he did in connection with them. 2. The defendant made nine motions to strike out testimony, which had been admitted subject to exception — two of which wereafterwards withdrawn,and theothers were, overruled.

The accident occurred on Federal street, east of Lakewood avenue. That part of Federal street is not thickly settled,- and as the street itself is not paved the car tracks are used by people driving along it. The nearest public house to the place of accident was Lumsen’s saloon and dwelling, which is on the corner of Milton avenue and Federal street — fronting on the former with a side entrance from Federal street. Milton avenue is two blocks from Lakewood avenue, and the place of accident was described as being about two blocks and a half from Lumsen’s place although, as we understand the evidence, no street acutually crosses Federal street between those two points — Lakewood avenue stopping at Federal and the grade of Luzerne street not having been adjusted to that of Federal, which had been lowered.

Between 11 and 12 o’clock the night of the accident, some one dressed in the uniform of the defendant company, with a conductor’s badge on his cap, rushed into the saloon of Lumsen and inquired whether there was a Maryland telephone there. He was asked what the trouble was and replied, “we struck a wagon,” “we have smashed into a wagon down here on Federal street,” “we run into a wagon on Federal street,” or “had run into a wagon down on Fed ⁶⁸⁷ eral street near Lakewood avenue,” as stated by the respective witnesses. Several of the men in the saloon started immediately to the place of the accident. Two of them ran— taking, according to the statement of one of them, about half a minute to get there.

When they arrived, they found a car standing on the east-bound track and the wagon on the side of the west-bound track. The rear right wheel was broken to pieces, some spokes were broken out of the rear left wheel and the wagon was otherwise badly injured. Some of the contents of the wagon were scattered over and about the tracks. The motorman was at the car, but there was no conductor there when the witnesses arrived.

Mr. and Mrs. Cloman were at that time in the car, and at the suggestion of one of the witnesses the motorman ran it to the eastern terminus of those tracks, crossed over to the west-bound track and brought them back to Lumsen’s place, where they were taken out of the car and remained until late in the night, when they were carried to a relative’s house. The conductor was told when he went into Lumsen’s where he could get a Maryland telephone, left Lumsen’s as soon as he had told of the accident and was not seen again by the witnesses until the car had been run back there, where one of them saw him. When the conductor first went into the saloon, he was, as described by Lumsen, “just as white as he could be, and almost frightened to death; he was quite a young youth,” and all of the witnesses spoke of him being in a very excited condition. There would seem to be no difficulty about treating the statements of the conductor as part of the res gestae, if he was the conductor in charge of the car in question.

Very little time was required for him to go from the place of the accident to Lumsen’s, and he was in such an excited condition as to justify the belief that he had hurriedly come from it. He said that, as he left, the motorman was taking the parties out from under the wagon. The witnesses reached the place of accident in a very short time and they found the car still there, in charge of the motorman, and that the wagon had been violently struck by something. No one can doubt ⁶⁸⁸ from the evidence that it had been struck in the rear by a car running on the track of the defendant.

Mr. Cloman testified that he was driving easterly, on the eastbound track, and without warning his wagon was struck in the rear. A car of the defendant was found standing there and some of the contents of the wagon were strewn over the tracks, just as would be expected from such a collision. It would be a reflection upon the wisdom of the law to hold that there was not enough in this record to make out a prima facie case of the wagon having been struck by the car of the defendant, for it seems to us that no other conclusion could be reached under all the circumstances — even if the statements of the conductor be entirely ignored. There is not a particle of evidence to show that there was anything which could have produced the injury excepting a car, and as a car was found standing at the place of the accident; at a time which must have been shortly after it occurred, it is impossible to account for it in any other way from what the record discloses.

There was no suggestion by the motorman that he was under no obligation, or had no authority, to carry the injured parties to the end of the line, and then bring them back to some place where they could be treated for their injuries but he did precisely what would have been expected of him and what he ought to have done if his car ran into the wagon. When therefore all the surrounding facts are considered — and especially when we find that the company took charge of the horse and contents of the wagon, describing them in the receipts as above mentioned, no possible injury could have been done the defendant by admitting the statements of the conductor, even if they were conceded to-have been inadmissible, for no jury of ordinary intelligence could have had any doubt that the accident was caused by the collision of a car of the defendant with the wagon. But we do not deem it necessary to merely rely on the fact that there was no reversible error, because there was no injury, for we are of the opinion that the evidence was admissible. The person spoken of as the conductor wore the uniform and ⁶⁸⁹ the badge of a conductor of the defendant.

His excited condition and haste in going into Lumsen’s place were some evidence of his having just come from the place of the accident, which he spoke of. No conductor was on the car when the witnesses reached it, not over a minute or so after he left Lumsen’s presumably to get a Maryland telephone — and the same man was seen at Lumsen’s again after the car got back there but there was no conductor on the car in the meantime. His statement that there had been an accident at the place indicated by him was corroborated, and it is impossible to believe that he was not the conductor on that car, in the absence of some proof to the contrary. Such evidence was not conclusive against the defendant, but the facts proven and the surrounding circumstances were sufficient to establish, prima facie, that the man who went into Lumsen’s place was the conductor of the car found standing at the place of the accident, and they were sufficient to call upon the defendant to explain them.

None of the witnesses knew him, but the defendant knew who was conductor on that particular car and could have shown what became of him, if he was not the person who went into Lumsen’s. The cases of Balto. City v. Lobe, 90 Md. 310 ; Wright v. State, 88 Md. 705 , and others relied on by the defendant are not at all in conflict with what we have said, but support the position we have taken. Of course, as was said in Wright v. State, “The act or declaration sought to be proven must, however, be so connected with the transaction as to be part of it,” or as stated in Lobe's case, “to make the declaration a part of the res gestae it must be so connected with the transaction as to be reasonably a part of it; it must not be the result of premeditation or design, but the ‘immediate spur’ of the transaction,” but in this case the evidence shows not only that the statements of the conductor were so connected with the transaction as to be part of it, but he was apparently seeking to inform his company that the accident had happened, and doubtless would have sought directions as to the course he was to pursue, if he had found a Maryland telephone there.

We are of ⁶⁹⁰ opinion that the evidence included in these motions was admissible.' 3. The defendant moved the Court to direct the plaintiff to permit the doctors of the defendant to make a physical examination of her, and also made another motion asking the Court to direct her to submit to such examination by a doctor to be