Washington, Baltimore & Annapolis Railroad v. State

Boyo, O. J., delivered the opinion of the Court: This is an appeal from a judgment rendered against the appellant for the death of Maria L. Hall, the daughter of Amelia Hall and mother of Nacmi Hall, an infant, which resulted from a collision between an automobile in which she was riding, and one of the cars of the appellant. There are seven bills of exception presenting rulings on the admissibility of evidence and one embracing the rulings on the prayers. Three prayers of the plaintiff were offered, all of which were granted, with some modifications of the second and third, and twelve were offered by the defendant, six of which were granted but the first, second, third, third and one-half, sixth and ninth were rejected. Some special exceptions to- the plaintiff’s prayers were overruled.

To the granting of the plaintiff’s prayers and to- the rejection of the defendant’s six prayers exceptions were taken. As the rulings on the prayers present the important questions we will first consider them. Erank Kratzmeyer, who owned a Chalmers roadster, took E. J. T. Jockell, Miss Van Fossen and Miss- Hall out riding on Sunday night, March 25th, 1917, and the collision occurred about 11.30 P. M. which resulted in injuries to Miss Hall, from which she died on April 5th. She lived with her mother, Mrs. Amelia Hall, and contributed to her support.

Naomi Hall is her daughter, being twelve years of age in July, 1919, and the father of Naomi was said to be George Kelly, to whom the equitable-plaintiffs claim Miss Hall was married, but that she was with him only one day and night, and she continued to us© her maiden name. The four persons named above were on the front seat of the automobile. Kratzmeyer was driving, Miss ¹⁰⁷ Van Possen was sitting next to him, on his left, Miss Hall next to her, and Joekell was sitting partly on her lap and partly on the “beading” of the automobile!, with his left foot out on the step, as he described it in the record. Scott Street runs north and south, and has two tracks on which the cars of the appellant run in going between Baltimore and Washington and Annapolis.

Hamburg Street runs east and west. The automobile was going west on Hamburg Street, towards Scott Street, and the car of the appellant was coming from Washington on the northbound track, having left there at 10.05 P. M. There is an elevated viaduct some distance south of where the accident happened. The engineer of maintenance of way of the appellant testified that the bottom of the incline was 1,155 feet from the north building line of Hamburg Street, which street is 38.5 feet wide from curb to curb, and bas sidewalks of 13.5 feet on each side. Kratzmeyer and Joekell were called as witnesses, but Miss Van Possen was not.

Although there were conflicting statements made by the witnesses as to the speed of the electric car and of the automobile, as well as to whether any signals were given by the ear as it approached Hamburg Street-, it would be difficult for Kratzmeyer to avoid the effects of his contributory negligence if this was a suit by him. While the accident occurred in a part of the city which is closely built up, the evidence shows that it was Sunday night, in the neighborhood of half past eleven and the street was quiet, little or no traffic being then upon it. If the car was going at such a speed as some of the plaintiff’s witnesses said it was, on an upgrade which was shown to be there, there could have been no possible reason for Kratzmeyer not hearing it coming, if the automobile was going at the speed he said it was, and he was using ordinary care and caution in approaching the tracks. He said he was going ten or twelve miles an hour, was running within three or four feet of the north curb on Hamburg Street and ¹⁰⁸ that he could stop- his- car when going at that speed in a car length, which was about fourteen feet.

He said there were some holes in Hamburg Street, which looked as- if they had been putting in water or gas pipes and filled them up- with cobblestones, thus leaving depressions, which were about seventy feet from Scott Street. This also appears in his evidence: “As I passed the holes I looked down Scott Street and there wasn’t anything in sight when close to> the building-line, I looked again and there was nothing in sight, and when I looked around again this thing was right on top' of me and I sheered to my right, going in the same direction he was going, and that quick (indicating) this happened, and that is all I knew until I woke up again. Q. As you' approached Scott and Hamburg Streets before you reached the building-line, did you look to- either side? A. Tes, I looked before- I approached Scott Street.

My longest vision was that way (indicating), and I looked that way. Q. Which way is that? A. To my left, and that was- the longest vision, and as I approached on my right that way (indicating) I looked and it was clear, and when I went'to- look to- my left again that quick it was on me (indicating). Q. How far below Hamburg Street was the electric car when it came into your line of vision?

A. I couldn’t say. It came so quick I couldn’t judge. I looked around again in my right of way, and he was right on top of me then. It all happened in a minute, and I couldn’t judge how far it was- or where he was at the time.

Q. Try to give approximately how far below Hamburg Street be was when you first observed him? A. I couldn’t say how far belo-w. I judge he- was- almost across the street, according to that, as I had the right, of way to cross the street, and as I looked around as soon as I turned my head there he was, so he must have been pretty near- across- the- street at the time the way I dope it out. As soon as I saw him that quick (indicating) it was over with.” When that is taken in connection with other evidence, it would seem that Kratzmeyer was trying to cross ahead of ¹⁰⁹ the car.

Without definitely determining that, but assuming for the purposes of this case that he could not recover by reason of bis contributory negligence, it still remains to, determiné how far, if at all, that affects the right of the equitable plaintiffs to recover on account of the death of Miss Hall. In United Rwys. & Elec. Co. v. Crain, 123 Md. 332 , Judge Pattison, in speaking for the Gonrt, repeated wha.t had been previously held hy this Court in P., B. & W. R. R. Co. v. Hogeland, 66 Md. 149 ; B. & O. R. R. Co. v. State, use of Strunz, 79 Md. 335 , and United Rwys. Co. v. Biedler, 98 Md. 564 , that “it may he stated as the general rule of the Courts of this country, with but few exceptions,, that the contributory negligence of a carrier, or of the driver of a, public or private vehicle, not owned or controlled hy the passenger, and who is himself without fault, will not constitute a bar to the right of the passenger to recover for' injuries received.

The only principle upon which such contributory negligence could bar the right of recovery is, that the driver should he regarded as the agent or servant of the passenger,” and Judge Pattison added: “This is undoubtedly the established law of this State and we have no inclination to depart from it.” In B. &. O. R. R. Co. v. State, use of McCabe, 133 Md. 219 , after referring to the above, it is said, “it is well settled by the above cited cases, and others that the negligence of the* driver in such eases cannot he imputed to the passenger injured or killed, hut. it is equally well settled in all such cases, that the right to recover for the injury or death of such party is defeated, when it is shown that he has contributed to the accident by his own negligence, and therefore when there is any evidence tending to' show such negligence legally sufficient to go to the jury it should be submitted to it.” The Court went on to say in that case that the evidence “was legally sufficient to go to the jury, tending to show contributory negligence on the part of McCabe, but it was, not of a character that warranted the Court in holding that he was ¹¹⁰ guilty of contributory negligence as a matter of law.” Mc-Cabe was sitting on the front seat with the driver, and it was shown that both looked and listened, for trains, but heard no whistles or bells. At one point- the driver stopped the automobile, and they looked up and down the track, and listened for a train, but they neither saw nor heard any. He then started forward towards the tracks, which were about thirty or thirty-five feet away.

There was a watchman’s box near the tracks which obstructed their view, but McCabe did not warn or advise the driver not to cross the tracks without again stopping at a point beyond the watchman’s box, where he could have seen the oncoming train. In the Crain Case the plaintiff testified that just before the accident she heard Mr. Goodman, the driver’, tell Mr. Pfutz, another passenger, that there was a crossing somewhere along there but just where it was located he did not know. The plaintiff was enjoying the scenery. There were poles- fifteen or eighteen inches in diameter upon each side of the railroad track, at a distance not greater than 110 feet apart, with wires strung upon them, extending for at least half a mile to the westward, which located the railroad and the crossing upon the highway, and they were plainly visible at a point some distance from the crossing, thus pointing out the place of danger of which Goodman had given notice to those in the automobile, including the plaintiff.

As the Court said, “it would seem that said poles and wires would have been noticed and observed by the plaintiff in the exercise of ordinary care and caution on her part to avoid the threatened , danger, but if they were observed by her she made no mention of them.” Yet the Court said that it would not hold as a matter of law she was guilty of contributory negligence, “but nevertheless we think the evidence tending to show a want of due care on her part — which under the circumstances she was bound to take — should have been submitted to the jury.” In that ease, Brommer v. P. R. R. Co., 179 Fed. 577 , 29 L. R. A. (N. S.) 924, is referred to- at some length and was said by Judge ¹¹¹ PAttison to be “very much like the case at bar.” A quotation is made from it which included one from Davis v. Chicago, etc., R. R. Co., 16 L. R. A. (N. S.) 424, 88 C. C. A. 496 , 159 Fed 18, which in part was as follows: “It is now the better recognized rule of law that as to such a person, situated as was the plaintiff, riding in a vehicle in mere companionship with his friend, engaged upon a mutual adventure, it is as much his duty as that of the driver to take observation of dangers, and to avoid them, if practicable, by suggestion and protest. In other words, he is required to exercise ordinary care to avoid injury.” That is in substance stated in the syllabus of tbe Crain Case as a decision of tbis Court, altbougb it is merely a quotation from the Brommer Case.

But as will be seen by reference to them, each of the throe cases cited in Grain’s Gase directly after the above quotation was submitted to the jury, and in the note in Ann. Cases 1916 E, 269, referred to below it is said: “Whether the occupant has exercised reasonable care under the circumstances is usually a question for tbe jury” — citing many cases, including Crain’s Case. In United Rwys. Co. v. Biedler, 98 Md. 564 , a prayer was granted containing an instruction that there was no evidence legally sufficient to show any negligence on the part of the plaintiff directly contributing to the happening of the injury complained of. In Hogeland’s Case, 66 Md. 149 , the Court submitted the question to the jury, as was also done in B. & O. R. R. Co. v. State, use of Strunz, 19 Md. 335 .

While there are cases in which the guests or occupants have been held guilty of such contributory negligence as to pro-elude recovery as matter of law, it will be found by an examination of tbe numerous cases on tbe subject that generally the question must be submitted to the jury. There are a great many cases on thei general rule and exceptions to' it which are cited in the note to Anthony v. Kiefner, Ann. Cas. 1916 E, 269, and in the note to Christopherson’s Case, 28 N. D. 128 , as reported in Ann. Cas. 1916 E, 685. In this ¹¹² case we cannot say that the fact that there were four persons on the one seat, in the positions we have described, -constituted contributory negligence as a matter of law on the part of Miss Hall. By reason of the position she occupied, it may have been more difficult for her to see whether there was anything in the way, or any car coming, as they approached the crossing.

As she was on the left side (the one from which the car came) she probably had a better opportunity to see whether one was coming than the driver had, unless Jockell obstructed her view, when sitting partly on her lap and partly on the side of the automobile. Whether she thus voluntarily-put herself in a position that prevented her from seeing or hearing an approaching caí-, or which interfered with the driver’s view, as soon as he might have otherwise seen it, or interfered with his management of the car, were questions to be considered by the jury. Jockell testified that the car was “almost up to Hamburg Street” when he first saw it. As the street is 38% feet and the pavement 13% feet wide and they were near the north curb on Hamburg Street, the car must then have been about 50 feet from them.

The defendant’s engineer of maintenance of way testified, without contradiction, that a person four feet south of the north curb line on Hamburg Street and 10 feet east of the east building line of Scott Street could see 197 feet down Scott Street; that one seated in an automobile four feet south of the north curb line on Hamburg Street and 70 feet east of the east building line on Scott Street could see 70 feet down Scott Street and one at that building line (which is over 25 feet from the northbound track of the defendant) could see 1,200 feet down Scott Street, partially up the incline plane spoken of above. It is true that the measurements were taken in the daytime, but there was ample evidence tending to show that the car was well lighted and there was at least a dim headlight on it. There was, therefore, evidence to go to the jury as to whether the deceased was guilty of contributory negligence, and there was also evidence tending to show negligence on the part of ¹¹³ the defendant. The defendant’s first and second prayers were therefore properly rejected.

So although we have reached the conclusion that it cannot properly be said as a matter of law that Maria L. Hall was guilty of contributory negligence, we will no-w consider it as referred to in the plaintiff’s prayers. The first prayer submitted to the jury to find, amongst other things, “that said Kratzmeyer was in exclusive control of said automobile, and that the deceased wTas not driving said automobile and had no control over the driving or operation thereof,” and again that “'if the jury further find the deceased was exercising ordinary care and caution as a passenger in said automobile as the same was proceeding along Hamburg Street, approaching and crossing Scott Street, and that when she saw or heard, or by the exercise of ordinary care could have seen or heard the said interurban electric car approaching said intersection of Hamburg and Scott Streets, sbe could not have stopped said automobile or alighted therefrom before said collision or otherwise avoided said collision by the exercise of ordinary care and prudence on her part, if the jury shall so find, and that she did not contribute to the happening of said collision by the failure on her part to exercise ordinary care and caution.” Inasmuch as that prayer specifically referred to Miss Hall not driving the automobile, not having control over it, etc.— thus emphasizing those matters — the jury might well have been misled as to other duties which she was called upon to perform in the exercise of due care, and which were more important to be considered by the jury under the circumstances of this case. Whether or not she used due care in looking for an approaching car and informing the driver of its approach, if she saw one, or could have seen it in time to warn the driver, whether the position she occupied in the car was negligence directly contributing to tbe accident and whether she should have warned the driver in approaching the crossing, if the jury .found that the automobile was running at an excessive speed, were more material under the evidence, yet the ¹¹⁴ prayer only selected such matters as were not involved in much