United Railways & Electric Co. v. Dean

Briscoe, J., delivered the opinion of the Court. ■ The principles of law controlling this class of negligence case are well established by a number of decisions of this and other State Courts. The chief difficulty consists in a proper application of them to the state of facts presented on the record in each case. The plaintiff brought this suit in the Circuit Court for Baltimore County on the 16th day of January, 1911, against the defendant, the United Railways and Electric Company, to recover damages for personal injuries received by him while a passenger on the railway, on its route from Baltimore City to Towson, in Baltimore county. On the 15th day of April, 1911, the case was removed to the Circuit Court for Carroll County for trial, and from a judgment entered in that Court, in favor of the plaintiff, for the sum of $1,800.00 and costs, the defendant has appealed.

The rulings of the Court below, upon the defendant’s demurrer to the declaration; the overruling of its motion for a rule for bill of particulars and its exception to ‘the action of the Court in dismissing the defendant’s petition for payment of costs of the former trial (where the plaintiff ⁶⁹⁷ submitted, to a non-prosJ before suit in this ease, the cause of action being' the same in both eases), were waived in this Court and are not pressed, in the argument in the brief. Idle questions for our consideration on the record now before us. arise upon twenty-four bills of exceptions, reserved by the defendant, during the trial of the case, on rulings of the Court upon the evidence and the prayers. Twenty-two of these present rulings of the Court upon the evidence. The first, fourth, fifth, seventeenth, nineteenth and twentieth were abandoned at the hearing and are not discussed by the appellant in its brief.

The twenty-third and twenty-fourth exceptions relate to the Court’s rulings on the prayers. At the trial of the case, the plaintiff presented four prayers, all of which were granted. The defendant offered sixteen prayers, and of these the second, third, fourth, fifth, sixth, seventh and fifteenth were granted. The twelfth was granted, as modified, hut the defendant’s first, eighth, ninth, tenth, eleventh, thirteenth, fourteenth and sixteenth prayers were rejected.

The rulings of the Court in granting the plaintiff’s prayers. the modification of the defendant’s twelfth prayer and the rejection of eight of the defendant’s prayers form the basis of the twenty-fourth exception. The facts set out in tbe record before us and on which the rulings of the Court below are based, briefly stated, are these: The defendant is a corporation and operates an electric railway in Baltimore City and Baltimore County. The plaintiff is a resident of Harford county, and on the 10th of July, 1910, was a passenger of the defendant company from Baltimore to Towson. He left Baltimore City to return to his home in Bel Air, TIarford county, at 9 o’clock on the night of the accident and took a car at Ranier avenue and 10th street, and transferred to the York Road car to Towson, and from there he took the train to Bel Air.

The oar upon which the appellee was riding was derailed, as it approached the overhead bridge crossing of the Maryland and Pennsylvania Railroad near Susquehanna avenue, Tow- ⁶⁹⁸ son, it jumped the track and struck a telegraph pole and pile of lumber. The plaintiff testified at the time of the accident be was sitting about the center of the car on its right-hand side, and remained in the same position during the entire transit. “I was sitting with my foot up on the side rail; there is a little projection out; I had my foot up on that. They had small transverse seats which seat two like a steam car has; going out from Govanstown to Towson, the car was traveling at a very high rate of speed. I suppose there were ten people on the car, which was traveling very fast; you could see by the side, you could tell by the feel of it.

When it was going through the curve (reverse curve) and oyer the switches the car started to wabble, and it never straightened up any more until it jumped the track. They never slackened up for the curve at all. When it went through the curve -it shook the people in the car. When the car left the track it threw me forward and j ammed my knee between the seat there and the window.

My leg was jammed in between the two. It was jammed in there as far as it would go ; it was jammed in there pretty tight, and it remained in there until the car struck the telephone pole or a pile of lumber. It threw my body forward and my head and shoulder against the seat in front of me; then it jerked my leg out and I fell to the floor; the first jar locked my knee in there and the second jar struck my head against the the back of the seat and my shoulder; then it jerked me loose and threw me out on the floor; one lady in the car fell to the floor that was standing up. She came back to where her husband was sitting with a baby in his arms and tried to get the baby, she was thrown to the floor.

A woman sitting up on the front seat, a colored woman, was thrown to the floor right off the seat. The driving of my leg in there between the edge of the seat and side of the car and then wrenching it out and throwing me on the floor twisted my hip loose, made a little lump on my head; my shoulder struck the hardest on the seat. The car was at a right ⁶⁹⁹ angle with the tracks and the end of the car was partly across the south-bound tracks. It projected far enough to prevent cars from going southward blocked the traffic at that point until after that train went up (the 11:20 train from Belair).

I looked at the track; the road bed there was torn up; in between the tracks was torn up; the cobblestones and the track at that point was torn up, just below where the car was standing towards Baltimore, I suppose six feet, probably eight, something like that. They were torn up on both sides of the rail. One end of the rail was sticking about that far above the other rail (indicating about 4 inches). I suppose it was a joint.

I don’t know whether it was broken or not. A pile of timber was in front of the car. Long timbers, I couldn’t say positive what they were, whether they were ties or what they were, the car was jammed up tight against it, and the fender was mashed up to one side. There was a mark on the telegraph pope and some one said at the time: “Look where she struck the telegraph pole.” Dr. Purnell E. Sappington testified that he was called to see the plaintiff after the accident, and that he found him suffering with pain in the hip and down the course of the nerve supply, the upper and lower leg.

He diagnosed his injuries as a dislocation of the sacro illiac joint and technically known as a sacro illiac subluxation. He also testified that the injury was permanent, would interfere with his ability to walk without inconvenience and it would give him pain. Dr. Frederick H. Baefjer, on the staff of the Johns Hopkins University, Baltimore, made an X-ray plate of the injured joint and confirmed the diagnosis of Dr. Sapping-ton. The testimony of Dr. Howell Billingslea, who examined the plaintiff shortly before the trial, was to the. effect that the diagnosis of Dr. Sappington was correct, and there was an injury to sciatic nerve, and just suc-h an injury as had been testified to by the plaintiff’s witnesses. ⁷⁰⁰ Tbe witnesses, Quickly, Eobinson and Driver, wbo were on tbe car at tbe time of tbe accident, each testified to tbe excessive speed of tbe car, as it approached Towson, and that it did not slow up when going through tbe reverse curve on tbe track; that two or three of tbe passengers were knocked from tbe seat when tbe car jiunped tbe track and struck tbe pile of lumber.

Tbe testimony on tbe part of tbe defendant, tended to show that tbe car was running at tbe usual rate of speed; that it slowed up as it approached tbe curve; that tbe track was in good condition, and that tbe car bad been inspected before leaving tbe barn on tbe day of tbe accident, and tbe car was in good order, except one of the side slides that carried the weight of tbe body on one side was bent and tbe other one was broken. Tbe witness Erazier testified upon cross-examination that both of tbe slides on that truck were out of order; they are near tbe middle of tbe truck. Pair of wheels here and pair of wheels here; then it comes between tbe wheels; that is done to prevent tbe car rocking too much from side to side. If these slides were not there the car would rock too violently from side to side.

They are prut there for that purpose. There was also conflict in tbe medical testimony of tbe X-ray experts, Drs. Baetjer and Cotton as to their interpretation of tbe X-ray plates submitted as evidence in tbe case. Drs.

Harrison, Eitzhugh and Woodward, wbo testified on tbe part of tbe defendant, did not concur with Drs. Baet-jer, Sappington and Billingslea as to their diagnosis and could not convince themselves after an examination of tbe plaintiff, “tbat.be bad a sub-luxation of rthe right sacro illiae joint, or that tbe injury was permanent.” Upon these and tbe other facts set out in tbe record, we think, tbe case .was one for tbe consideration of a jury. Tbe alleged negligence of tbe appellant was not a question of law for tbe Court, but one of fact to be determined by the jury, before whom tbe ease was tried, upon proper instructions by tbe Count. ⁷⁰¹ This brings ns'to the law of the case, as presented by the plaintiff and defendant’s prayers, and this, we think, was properly submitted by the plaintiff and defendant’s, granted prayers. AYe do not understand that the plaintiff’s first and second prayers