Washington, Baltimore & Annapolis Electric Railroad v. Faulkner ex rel. Bond

Thomas, J., delivered the opinion of the court. This suit was brought by the appellee to recover for injuries alleged to have been caused by the negligence of the appellant, the Washington, Baltimore & Annapolis. Electric Railroad Company, and the present appeal brings. up for review' the rulings of the court below on the evidence embraced in twenty-two bills, of exception, and its action on threie prayers offered by the plaintiff and nineteen offered by the defendant. The accident happened about 12 o’clock noon on the 19th of October, 1918, at the intersection of Scott Street and Columbia, Avenue, in Baltimore City, where the double track railroad of the appellant on Scott Street crosses the tracks of the United Railways and Electric Company on Columbia Avenue.

Scott Street runs north and south and Columbia Avenue east and west, and the distance from McHenry Street, the second street crossing Scott Street to the north of Columbia Avenue to Columbia Avenue, is about six hundred and twenty-six feet, while the distance from Columbia Avenue to Hamburg Street, which crosses Scott Street to the, south of Columbia Avenue, is eight hundred and six feet. The first street crossing Scott Street north of Columbia Avenue is Ramsay Street, which is about two hundred and seventy-eight feet from Columbia Avenue, and the first street crossing Scott Street south of Columbia Avenue is St. Peter Street, which is about three hundred and ten feet from Columbia Avenue. From McHenry Street, north of Columbia Avenue, to Hamburg Street, south of Columbia Avenue, the tracks of the appellant are practically straight and level, with a slight decline or down-grade from McHenry Street to Columbia Avenue. The cars or trains of the appellant when coming; to Baltimore from Washington, or from intermediate points, which run north on Scott Street, and those going from Baltimore to Washington, or to intermediate points, which run south on Scott 'Street, stop at Columbia Avenue to- discharge and take on passengers.

The company erected or ⁴⁵⁴ posted signs at the intersection of Scott Street and Columbia Avenue stating, “Oars stop here,” and. the general manager of the company testified that the rules of the company given to conductors and motormen required the trains 1» stop at all “rapid transit intersections,” and “that Columbia Avenue was one of these.” There were two trains of the appellant involved in the accident — one coming from Washington and spoken of as the northbound train, consisting of a motor car, or motor, and five trailers, and the other going from Baltimore, called the southbound train, consisting of a motor and three trailers. The space between the west rail of the northbound track and the east rail of the southbound track, called the “dummy,” was about four feet and six or seven inches wide. The width of the motor oars, or motors, was about nine feet, and the width of the trailers was about eight feet. “The clearance” between the side of a motor on one track and the side of a trailer passing on the other track was about thirteen inches, and the “clearance” between two motors was less. The plaintiff at the time of the accident was thirteen years of age, and, according to his version of what occurred, he received the injuries complained of, which resulted in the amputation of both of his legs, while he was attempting to cross from the southeast to the northwest comer of Columbia Avenue and Scott Street.

When asked to state exactly what happened the plaintiff said: “I left the news office on the corner of Columbia Avenue and Scott Street and I walked up to the comer store at Scott Street and Columbia Avenue and as I got to the comer I looked down Scott Street to see if there were any W., B. & A. cars coming up*, and I looked down and I saw one about a square and a half below Columbia Avenue and I started to walk across towards Fagan’s saloon and as I got to the center of the crossing I looked up¡ Stott Street and I seen a W., B. & A. car turn out of McHenry Street into Scott Street and the next thing the W., B. & A. ear came and struck me and knocked me down on ⁴⁵⁵ the southbound track and the southbound car cut my legs off and before the southbound car cut my leg's off I tried to crawl out of the way and the southbound car ran over mo and that is the last I remember until I woke up in the hospital.” He further testified that he sold newspapers and had been to the news office to get some papers, and that finding that they had not arrived he started across, the street to go. to Bartlett & Hayward’s “to watch the people come out,” and that he did not hear any hells rung before he was struck. The testimony of the plaintiff was corroborated by a number of witnesses, who stated that they saw the accident, and further testified that the plaintiff was struck and knocked over on the southbound track by the northbound train, and that the southbound train ran over him; that there was nothing in the street to prevent the motorman of the northbound train or the motorman of the southbound train from seeing the plaintiff ; that both trains were running very fast; that neither one of them stopped at Columbia Avenue, and that thei northbound train did not stop until the rear oar or trailer was just beyond the north side of Kamsay Street, when the conductor got out and went back to where the plaintiff was struck. The evidence produced by the defendant gives a very different account of the accident. The motorman of the northbound train testified that both trains reached Columbia Avenue about 12 o’clock, and that the southbound train stopped at the north side, and the northbound train at tbe south side of Columbia Avenue to discharge three passengers; that the southbound train started from Columbia Avenue just, a little before tbe northbound train started; that just- as be started and his motor wasi approaching the intersection at about the speed a man would walk, the plaintiff and several other hoys ran across the street and started to jump on the southbound train; that the plaintiff was behind the other boys and ran right in front of him,; that the moment he saw him he blew his whistle and “threw the air into, emergency” and stopped his train on the intersection, and that as the plaintiff passed ⁴⁵⁶ him he jumped on the front steps of the last car of the southbound train and was hanging on the steps; “with his hips hanging out this way (indicating]),” when the southbound train passed him, the witness, and that he knew he was in danger"; that he heard something “that felt like somebody had thrown a stone against the side of the motor,” and that he told the conductor “to look on the other1 side to see if that boy had cleared on the southbound train”; that he got down off of his motor and saw the plaintiff lying, between the two tracks; that the bumper or front part of his motor did not strike the plaintiff, for he s«aw the plaintiff as he was passing by while hanging on the steps, and that from where the plaintiff was lying, and “from where he heard the lick,” he must have struck the “grab handle” of the baggage car door— the front door on the side of. the motor1 of the northbound train; that after going to where the boy was lying he was ordered by his conductor to move his train off the crossing in order to clear the tracks for a Columbia Avenue oar which was waiting at the crossing, and that he then moved his train up to the north side of Ramsay Street.

This testimony of the motorman was corroborated by the crews of the north and southbound trains, the motorman of the Columbia Avenue car, and by a number of disinterested witnesses. Dr. Holland, who operated on the plaintiff and who attended him while he was. at the University Hospital, stated that his recollection was that the plaintiff told him that “he jumped on one car and as he jumped off he was struck by a car on the other side going in the opposite direction,” and Mrs. Mae-Question, another witness for the defendant, who was employed at the hospital and who wrote the “history” of the case, testified that about six weeks after the accident Hie plaintiff, when asked by her, “why he did this,” replied that “he was playing on the street and the W., B. & A. car was moving, along slowly and he jumped on to take a ride, and he didn’t realize he was in the middle of the tracks instead of on the outside, and that another car came along and he ⁴⁵⁷ was dragged off the car on which he was riding and was run over by the car on which he was riding.” The sixth, ninth, tenth, eleventh, sixteenth, seventeenth and twenty-second exceptions were not pressed in this Court, and the exceptions to the evidence chiefly relied on by the appellant were the first and second, the twelfth, thirteenth and fourteenth, and the eighteenth, nineteenth, twentieth and twenty-first. Tho plaintiff called as a witness James J. Doyle, the general manager of the appellant, who stated that the appellant did not have a watchman at the corner of Columbia Avenue and Scott Street at the time of the accident or at the time ho was testifying, and the first exception wasi to the action of the court in permitting the plaintiff to ask the witness: "Haven’t you had a watchman there?” The witness replied that during the “evening hours when the race meets are on we have placed a watchman there during the time when the trains are coming in from the race trade.” The second exception was to the further question: “And during the race meets von have had a watchman there since 1914?” To which the witness replied: “For two hours each evening; during tho race period.” * * * “That is, in the evening and not during' the day.” The obvious purpose of the questions was to get from the witness a statement that the company generally had a watchman at the crossing in question so that, the jury might, infer that the company was negligent in failing to have one there at the time of the accident. While no circumstances. had been shown that would impose upon the company the obligation to keep- a watchman at the crossing (North.

Cent. Ry. Co. v. Medairy, 86 Md. 168 ; Cowen v. Dietrick, 101 Md. 46 , and Evans v. B. C. & A. Ry. Co., 133 Md. 31 ), and the questions were not proper, it is apparent that the plaintiff failed in his purpose, for the answers of the witness were to the effect that the company had never had a watchman at the crossing except for about two hours in the evening when the trains were coming from the race ⁴⁵⁸ track.

The accident referred to occurred about the middle of the day, and we do not see how the fact that the company employed a watchman only at a certain hour in the evening and under the special circumstances stated, could have led the jury to the conclusion that it should have had one at a different hour in the day, and under entirely different circumstances, or how the defendant could have,been prejudiced by the testimony of the witness. The twelfth, thirteenth and fourteenth exceptions are to the refusal of the court to admit in evidence a record made at the hospital of the various patients, and particularly that part of it containing the “history” of plaintiff’s admission into the hospital, his age, name, complaint, family history, and .what purported to be a statement of how tire accident occurred. Dr. Holland, in his examination in chief, testified to the statement made to him by the plaintiff while he was in the hospital, to which we have already referred, and on cross-examination, presumably with the view of showing, that he was not in a condition to make such a statement, Dr. Holland was asked by counsel for the plaintiff to give the plaintiff’s temperature for1 each day during the first six or seven weeks he was in the hospital. Dr. Holland stated that he could not give it from memoiy, but could do so by referring to the “record,” which contained the “chart” indicating the plaintiff’s temperature on each day.

He was told by plaintiff’s counsel to refer to the record, and after doing so and testifying to the temperature, the witness said that the black line on the “chart” immediately above ninety-eight indicated a normal temperature, and counsel for the plaintiff then proposed to show the “chart” to the jury, to> which the defendant objected unless the whole “record” was admitted in evidence, and particularly that part of it containing what we have spoken of as the “history.” The court overruled the objection and permitted the plaintiff to offer the “chart” in evidence without offering the whole record. On re-direct examination of the witness the defendant first ⁴⁵⁹ offered that part of tbe “record” containing' the history, and then offered the entire record. The evidence was objected to by the plaintiff and the court sustained the objections, and the rulings mentioned are the ones referred to in these three exceptions. The contention of the appellant is that, as the plaintiff had offered in evidence the “chart” showing the temperature of the plaintiff, the entire record was thereby put in evidence.

The purpose of the defendant was to get before the jury that part of the “history” which contained the following statement as to how the accident occurred: “'Present illness. On October 19th, 1918, when he jumped on a W., B. & A. car while selling papers fell from the car when a car passing in the opposite direction striking his head, and this is the last he remembers until he woke up at the University Hospital to find both legs amputated and head bandaged.” This statement was not a part of the “chart,” and did not contain any explanation .of it; it was not a record of the condition of the plaintiff while in the hospital, or of any treatment he received while there, and there was no evidence before the court as to how the record was made, who wrote the statement, or from what source the writer obtained his or her information. It is, therefore, clear that the statement was not, under the circumstances, admissible for any purpose. The doctor had been allowed to- use the chart, without objection, in giving the temperature of the plaintiff, and after he stated that the black line on the chart indicated a normal temperature counsel for the plaintiff showed the chart to the jury.

The defendant was not injured by the introduction of the chart, and the fact that it was admitted in evidence would not have justified the introduction of the statement referred to, even if thp “history” was so attached as to indicate that it was intended to be a part of the hospital record. The admission of such evidence under the rule invoked by the appellant would have established a dangerous precedent, and one not warranted by the meaning and purpose of the rule. 1 Greenleaf on Evidence (16th Ed.), Secs. ⁴⁶⁰ 201, 201a and 202; 3 Wigmore on Evidence, Sec. 2113. Mrs. MacQuestion later testified, however, that she wrote the “history,” and that the plaintiff made to her the statement we have already quoted from her testimony, so that the defendant got the benefit of the statement contained in the “history” excluded by the court below. The eighteenth, nineteenth, twentieth and twenty-first exceptions are to the testimony of the witness Frank Fox.

William H. Swallenberg, the conductor on the northbound train, testified that the train stopped at the comer of