Washington, Baltimore & Annapolis Electric Railroad v. State

Sloan, J., delivered the opinion of the Oourt. This is the second time this case has been before us. The first appeal was at the instance of the appellee, and is reported in 149 lid. 443, and was on an exception to the granting by the trial court of the appellant’s (then appellee’s) first, third, sixth, and ninth prayers. The ruling on the sixth prayer was reversed and it has been excluded from the present record.

The rulings on the other three prayers were sustained by this Court, and they appear in the present record as the only prayers granted by the trial court, and are respectively designated as the defendant’s first, third, and sixth prayers. The other prayers in the former record were all rejected by the trial court and are the subject of the second exception in the present appeal. The prayers of the appellant are designated A, B, 0, D, E, F and Gr, and first to sixth inclusive, of which the first, third, and sixth were granted and the others rejected. We find no substantial or material difference in the evidence at the former trial and in the present case1, and for this reason see no need to review all the facts here, and shall confine ourselves to such evidence as we deem necessary to explain our views of the prayers before us.

In the first appeal, although the prayer to take the case from the jury had been rejected and the appeal taken on the ¹²² granting of four prayers of the defendant (appellant now), the appellee presented its ease to this Court on the theory that, although the court had rejected its prayers for a directed verdict, the judgment below should have been affirmed because the prayers for a directed verdict should have been granted, and if so, it made no difference whether there was error in the instructions granted on which the plaintiff (appellant then and appellee now) appealed. This Court then held, on the whole evidence (149 Md. p. 455), there was enough in the evidence to which we have referred to take the case to the jury. Adhering to the same opinion, based on what we regard as substantially the same evidence, the Ay B, C, D, E, E and G prayers of the appellant, all of which asked for a directed verdict, were properly rejected. The 0 prayer of the appellant asked the court to declare as a matter of law that the four and one-half years old Paul Eolish “was guilty of negligence directly1 contributing to the happening of the accident.” The appellant said: “The approval of this court of the denial of that prayer would be contrary to its ruling in Sullivan v. Smith, 123 Md. 546 .” We do not understand that we are overruling or qualifying the decision in that case.

There the plaintiff, a girl of seven years, came from behind a wagon and was struck by an automobile. The driver saw her, instantly swerved his car to the left, doing everything he could to avoid striking her. In this case the motorman was going east on a street 66 feet in width, with side-walks of 13.5 feet, leaving 39 feet from curb-to curb, on which was a double track railway, the outer rails of each track being 12.15 feet from the curb, the tracks 10 feet from center to center. There was evidence on the part of the appellee that the car was running from 12 to 18 miles an hour, the appellant’s evidence being that it was running 8 miles an hour.

The motorman testified that he did not see the boy who was struck by his car until after a colored boy yelled at him and he stopped the car and found the child under the left front truck. He stated that he stopped the car within eight or ¹²³ ten feet after his attention had been so attracted; had not seen any children running across the street; did not see Cohen standing in the westbound track waiting for the car to pass. Cohen testified that he was standing there at the time with his helper, a colored boy beside him, each of them with a case of soda water bottles on his shoulder, and a boy four and one-half years old ran by them on to the eastbound track, and the motorman, who said, “I am out there tending to my business. * * * Looked right up the street,” and who, fifty feet further on, after applying the air, stopped in eight or ten feet, did not see any of them. The chauffeur in Sullivan v. Smith, supra, did everything he could to avoid the accident.

The motorman here testified that he did not see the boy, and evidently did not look, otherwise he wouJd have seen the boy, Cohen, and his helper. The E and Gr prayers of the appellant respectively asked the court to declare as a matter of law that the father and mother of the boy who was killed were guilty of such negligence in allowing their boy to be on the street unattended as would disentitle them to recover. Our attention has only been directed to one case in this state, wherein this Court has declared as a matter of law that the plaintiff: was not entitled to recover when injured while in the custody of the parent, viz. Cumberland v. Lottig, 95 Md. 42 .

That case is not this. In the Lottig case Judge Fowler drew the distinction between it and a case in principle like the one before us, and that is whether, at the time of the accident the injured party was in a place where he had a lawful right to be, or where it was proper for him to go. The Lottig boy was injured by taking hold of an electric wire crossing over, and eighteen inches above, a roof to which he had been taken by his mother at night for the purpose of looking into and through the windows of a theatre across the street. “Can it be said that the plaintiff: and hi.s mother, as was said of Kelson in Western Union Tel. Co. v. Nelson, 82 Md. 293 , were upon a public highway, or in a place where the defendant supposed they would ever go, or that ¹²⁴ they were acting in a proper manner?” A street railway company “is bound to take notice of and recognize and respect the rights of every pedestrian or other traveler.” Cooke v. Balto.

Traction Co., 80 Md. 554 ; Balto. City Pass. By. v. McDonnell, 43 Md. 553 . So far as the child is concerned, it could not be required to exercise any higher degree of care than might be expected of one of his years.

United Rys. Co. v. Carneal, 110 Md. 232 ; McMahon v. North. Cent. R. Co., 39 Md. 438 ; Balto. & O. R. v. Fryer, 30 Md. 51 .

The great weight of authority is opposed to the proposition that a child a little over four years of age can be guilty of contributory negligence. State, use of Kolish, v. Wash., B. & A. R. Co., 149 Md. 459 . Eliminating, then, the child from the charge of contributory negligence, what degree of care is required of the parents? It is undisputed that at the time of the accident the father, who is the equitable plaintiff, was at his work and that the children were in the care of the mother.

They lived in a densely populated section of South Baltimore, in a block where the average house was fifteen feet in width; houses solidly built; in some instances a family to each floor. The street was the play ground. A few minutes before the accident the mother and the boy were on the steps, which projected on the sidewalk. Her two months old baby began to cry.

She weni^into the house to- look after the baby and was gone five or six minutes. When she came out, after that short time, her boy had been killed. When she left her boy on the steps to- gq to her baby, had she thereby so contributed to the death of the boy as to- preclude a recovery ? “Courts are cautious not/to invade the province of the jury, and, although the question of negligence may become a matter of law, the circumstances of the case must be clear -and decisive to justify a withdrawal of the- case from the consideration of the jury.” United Rys: Co. v. Carneal, 110 Md. 230 ; Balto. & O. R. Co. v. Belinski, 106 Md. 455 . A case almost identical in its facts with the instant case was that of Del Rossi v. Cooney, 208 Pa. 233 , where the court, quoting with