UNITED RYS. CO. v. CARNEAL

J. Pembroke Thom and Albert E. Donaldson, for the appellant.

It is nowhere held that a motorman must stop or even slow up his car when he observes a person standing still on the sidewalk or in the street to the side of the track giving no evidence of any intention to cross the track. Balto. City Pass. Ry. Co. v. Cooney, 87 Md. 261; Stabnew v. At. Ave. R.R. Co., 155 N.Y. 511; Holdrige v. Mendenhall Recr., 108 Wis. 1; Kline v. Traction Co., 181 Pa. 280; Heying v. United Rys. Co., 100 Md. 283; McNab v. United Rys. Co., 94 Md. 719.

In the cases just cited it is held that a railway company is liable if the motorman could have avoided the accident after he saw or ought to have seen the plaintiff's peril. This modification of the general rule was fully considered in Consolidated Railway Co. v. Armstrong, 92 Md. 554, where it is said: "But in order that this qualification of or exception to the general rule may be successfully invoked by the plaintiff, he must show knowledge on the part of the defendant, or its agents, of the peril in which he (the plaintiff) was placed, and that there was time after such knowledge within which to make an effort to save him from impending danger."

This being the law, it was incumbent on the plaintiff here to prove that at the time the infant plaintiff left the pavement and started across the street the car was far enough away to have been stopped by the exercise of due care in time to have avoided the injury.

The defendant's testimony clearly proved that the infant plaintiff was in a place of safety on the pavement, at the southeast corner of St. Paul and Twenty-third streets, and that she started to cross the street when the front of the car was in the middle of Twenty-third street; and that the motorman did all in his power to stop the car, the moment she started across. The fact that he did stop the car when the rear platform was opposite the crossing, is borne out not only by the defendant's testimony, but by the plaintiff's, and this certainly shows the utmost effort on his part. There is not a scintilla of evidence to show that from the moment the infant plaintiff left the pavement, the motorman of the defendant's car did not do all in his power to avoid injuring her.

From the testimony of the plaintiff's witnesses, it is not possible to say where the car was when the child started across the street, but if it proves anything at all, it does prove that the car was close upon her.

The colored man, Lewis, stated positively that he did not know where the car was when the child started, but that the car was close upon the child is clearly apparent from his evidence, for he says that she screamed when she started to run, and, to quote his own words: "I said that child is gone, and almost in the time I could say that the car had struck her."

Even if we should take the view that Mrs. Miller saw and was speaking about, the car concerned in the accident, and not another car, and that her opinion of the speed was correct — still there is not a scintilla of evidence that if the car had been going at an ordinary speed, or even as slow as four or five miles an hour, that it could have been stopped on a down grade with a slippery track; or even that with the rail, in good condition, the car could have been stopped in time to have avoided the accident. And upon her testimony the defendant's first prayer should have been granted. C. P.R.R. v. State, 73 Md. 74; Reidel v. P.W. B.R. Co., 87 Md. 153; Hoffman v. Syracuse R.T. Co., 50 N.Y. App. Div. 83; Molyneaux v. S.W. Mo. E.R. Co., 81 Mo. App. 25.

We know of no case held to have been properly submitted to the jury, in which there has not been some evidence of the relative positions of the injured person, and the car, when the peril to the person became apparent, while in the case at bar there is an absolute failure of evidence on the part of the plaintiff as to the location of the car when the peril of the plaintiff could have been seen.

That the child ran into the side of the car is shown by Lewis' testimony. In addition to this, we have the positive statements of the motorman and Murray, that the child ran into the side of the car. There was no evidence of any negligence in the operation of the car, or that it was running at an unlawful speed.

The plaintiff failing to show any negligence on the part of the defendant, and the defendant clearly proving itself free from negligence, the case should not have been submitted to the jury. The only evidence as to where the car was when the infant plaintiff started from the sidewalk, was given by the defendant, and the plaintiff did not even attempt to show that the car could have been stopped in any shorter distance than it was. Siacik's Admr. v. N.C. Ry. Co., 92 Md. 213; Egner v. United Rys., 98 Md. 400.

Defendant's second prayer should have been granted. The action of the child must be regarded as negligent, unless the view is taken that a child of that age is incapable of negligence. For, as was said by this Court in Cumberland v. Lottig, 95 Md. 42, where a child came in contact with a wire on a roof: "If he was too young to know of the dangerous character of the wire, his mother's negligence must be imputed to him, and if he was old enough to know better than to take hold of the wire, his own negligence would be fatal to his case."

If we take the view that the child was incapable of negligence, then her parents or custodians were negligent in allowing her to be upon a city street where trolley cars and numerous other vehicles were passing, and their negligence directly contributed to the accident, and there being no evidence that the car could have been stopped after the child should have been seen in dangerous proximity to the car, this prayer should have been granted. B. O. v. State use of Fryer, 30 Md. 47; Cumberland v. Lottig, 95 Md. 42; Waite v. N.E. Ry. Co., 96 Eng. Com. Law, 711, affirmed 96 Eng. Com. Law, 728; Lifschitz v. Dry Dock Co., 67 App. Div. (N.Y.) 602; Gibbons v. Williams, 135 Mass. 333; Wabnich v. Dry Dock, etc., Ry. Co., 112 App. Div. (N.Y.) 4.

By granting the plaintiff's first prayer the jury were allowed to find for the plaintiff if they believed the accident could have been avoided by the exercise of ordinary care and prudence on the part of the defendant at any time. Such is not the law; it was only after the motorman saw or could have seen the peril of the infant plaintiff that the duty was imposed.

Under this instruction the jury were entitled to find for the plaintiff if the motorman might have seen the child when his car was a square away, even though at that time the child was standing still on the pavement. They should have at least been instructed that it was only after the motorman might have seen the child approaching the track or in a position of peril that the duty to exercise care and caution to avoid injuring her arose. We contend that even in the form we have suggested the prayer would be improper; as it stands it is clearly erroneous.

There was not only no evidence to support plaintiff's second prayer, but it is erroneous for the further reason that no duty rests upon the motorman of a street railway car to stop it when he sees a person on the sidewalk giving no evidence of an intention to cross. If such were law the operation of railways would be impossible. The duty never arises except when the person is approaching the track or is in a position of peril. Baltimore Traction Co. v. Wallace, 77 Md. 435; North Balto. Pass. Ry. v. Arnreich, 78 Md. 589; Baltimore City Pass. Ry. v. Cooney, 87 Md. 261; Consolidated Ry. Co. v. Rifcowitz, 89 Md. 338.

This prayer amounted to a modification of the rule of contributory negligence, and the modification therein contained is substantially the same as was condemned in the case of Consolidated Ry. Co. v. Armstrong, 92 Md. 554; P. B.R. Co. v. Holden, 93 Md. 421.

The defendant's eighth prayer should have been granted in connection with its other prayers. It contained a correct proposition of law, as will be seen by reference to the case of Bannon v. B. O.R.R., 24 Md. 108.

By the plaintiff's second prayer the jury were told that if they found that the motorman, by the exercise of ordinary care and caution, might have seen the child and stopped the car in time to have avoided the accident, the negligence of the mother would not prevent a recovery. Certainly, the defendant was entitled to have the jury instructed in this connection; that the infancy of the plaintiff does not change the degree of care and diligence to be used by the defendant in the manipulation of its cars.

Containing, as it did, a correct proposition of law, the defendant was further entitled to this instruction upon the ground that "the Court will always instruct the jury, if applied to, as to the degree of diligence or skill and care which the law imposes upon the respective parties, and the jury are to determine if the requisite conduct has been observed." C. P.R.R. Co. v. State, 37 Md. 156-169; Balto. Trac. Co. v. State, use of Ringgold, 78 Md. 426.

The defendant's ninth prayer contained a correct statement of what is known as the law of imputed negligence. B. O. v. State, use of Fryer, 30 Md. 47-53; Cumberland v. Lottig, 95 Md. 42-48; Waite v. N.E. Ry. Co., 96 Eng. Com. Law, 719, affirmed 96 Eng. Com. Law, 728; Lifschitz v. Dry Dock Co., 57 App. Div. (N.Y.) 602-3; Wabnich Case, 112 App. Div. (N.Y.) 4.

This young infant was injured while on a public thoroughfare, unattended, which of itself was prima facie evidence of negligence. "The child was injured while unattended in the highway. This alone would be prima facie proof that she was exposed through the negligence of her mother, under whose charge she was, and that that negligence contributed to her injury ( Wright v. R.R., 4 Allen, 283), but it would not be conclusive upon either point. The plaintiff could show that the negligence of the mother did not contribute to the injury by proving that the child did not in fact do or omit any act in the occurrence, which common prudence forbade or required." Gibbons v. Williams, 135 Mass. 333.

Not only was this prima facie proof not rebutted by her mother, but the jury might well have inferred from the testimony of Mrs. Carneal that she or the person in charge of the child was negligent in the care of the infant plaintiff in allowing it to run at large upon a street where electric cars and numerous other vehicles passed. Her testimony was as follows: "On the morning of the accident she was sewing, and left two of her children, one of whom was Mamie, playing around the kitchen door and in the yard. The younger one became sleepy and she took her upstairs and put her to bed, and when she came down she missed Mamie and inquired of the nurse where she was. The nurse thought the child had gone upstairs, but the witness knew she had not, and seeing the back gate open, rushed out and was told there had been an accident."

That there was evidence to support this prayer is conceded by the plaintiff's second prayer. Surely it is a poor rule which does not work both ways, and if the plaintiff was granted an instruction that the negligence of the child's mother would not prevent a recovery if the jury found that the motorman could have avoided the consequences of her negligence (which latter part of the prayer was specially excepted to), the defendant was entitled to a corresponding instruction that if the jury found that the negligence of the parents or those in charge of the child was the direct cause of the injury, then there could be no recovery.

The question in the first exception should not have been allowed. Striking out the answer would not cure the evil done. Rosenstock v. Tormey, 32 Md. 170-182. Even if it were possible to think that striking out the answer would be sufficient, the Court did not strike it out, but invented a method of its own.

The Court modified the plaintiff's fourth prayer in regard to the testimony of Dr. Charles L. Rumsey excepted to in the defendant's first exception. This was surely an unusual method of procedure and could not but be prejudicial to the defendant in that it emphasized Dr. Rumsey's testimony, and brought it forcibly to the minds of the jurors, rather than excluding it from their consideration. The usual method a Court pursues to accomplish the result which the Court herein intended to accomplish, is for the Court to strike out the evidence from the record and instruct the jury not to regard the same. But in this instance the Court failed to do so, leaving the evidence in the record and modifying a long damage prayer by a statement to the jury that the evidence was too vague to be considered by them.

The Court did not wait until the defendant's counsel could prepare special exceptions to the plaintiff's prayers before argument to the jury.

The defendant's counsel stated to the Court that he wished to prepare and file special exceptions to the plaintiff's prayers. The Court then stated that he supposed these special exceptions were the usual formal exceptions, and, if so, he would not delay the case, but pass upon the prayers at once, giving the defendant leave to reduce its special exceptions to writing later, and there being no dissent or objection to this course (and certainly there was no reason for dissent or objection to the Court's statement, there being nothing unusual or informal in the special exceptions), argument was heard, and after such argument, the Court granted the plaintiff's first and second prayers, and, of its own motion, modified the plaintiff's fourth prayer by adding thereto the following words: "But the jury are not to award any damages for any injuries except those proved by the evidence with a reasonable certainty, and the testimony of Dr. Charles L. Rumsey as to the effect of the injuries to the pelvis testified to by him upon child-bearing by the plaintiff is too vague to be considered by the jury," and granted the said prayer as thus modified. The Court then read both sets of prayers to the jury.

The special exceptions in the usual form were presented to the Court and acted upon by him, and the fourth prayer was again modified. The Court then did not simply tell the jury that he had modified a prayer or the prayers, or read then all of the instructions anew, but waited until the end of a moving address by the plaintiff's counsel, and then read to the jury the damage prayers as modified the second time. Surely this would naturally tend to mislead the minds of the jury and lead them to believe that the only thing for them to consider was the amount of the damages, and to lead them to disgard the important question as to whether the defendant was the cause of the injuries, especially as the form of the prayer is such that it practically assumes that there will be a verdict for the plaintiff.

William Colton and John Philip Hill, for the appellee.

It will be observed by inspection and comparison of the plaintiff's first and second prayers that the language is precisely the same as the first and third prayers approved in City Pass. Ry. Co. v. McDonnell, 43 Md. 535.

If, therefore, the facts of the case at bar and the McDonnell Case are practically the same, the law of the appellee's case announced in said first and second prayers must be free from error.

The defendant's eighth and ninth prayers were properly refused, because the propositions announced therein were fully covered by the plaintiff's said first and second prayers, and the multiplicity of prayers substantially the same on subjects about which the law has been thoroughly well settled is a practice much to be deprecated. Agricultural Mechanical Association of Washington County v. State of Maryland, etc., 71 Md. 99. When the whole law of the case has been fairly submitted to the jury by the instruction actually given, a refusal to grant other prayers which reiterates the same principle in different words is not erroneous. Storr v. James, 84 Md. 282; McCarty v. Harris, 93 Md. 742.

If, however, it may be contended that defendant's eighth and ninth prayers are not covered by plaintiff's said first and second prayers, then defendant's said prayers are misleading and otherwise erroneous and were properly refused.

It is difficult to understand just how the learned counsel for the appellant may seriously argue in support of the propositions announced in appellant's first and second rejected prayers, and the several exceptions indicated, in respect of the plaintiff's first and second prayers.

The testimony of the witness Mrs. Miller and the colored man Lewis tends to show that on the day of the accident to the little plaintiff the appellant's car moved rapidly south on St. Paul street, a much-traveled public thoroughfare of Baltimore City, the head of its motorman being so directed that it was quite impossible for him to observe any object upon its tracks in the bed of said thoroughfare while crossing said Twenty-third street; that the persistent attempts on the part of Mrs. Miller to attract his attention whilst standing at the northeast corner of St. Paul and Twenty-third street, so that she might take passage on his car, were wholly unavailing; that although the appellant's car was a hundred feet or about one hundred feet north of Twenty-third street, at the time the little plaintiff started to run from the northeast to the southwest corner of said St. Paul and Twenty-third streets, he failed to see her, and the car he was operating knocked her down and ran over her as she approached said southeast corner, the screams which she continuously uttered from the time or about the time she left said northeast corner, while running diagonally, as indicated, being unheard by him.

Had the motorman directed his attention in front of his car, he would have been able to observe not only the little plaintiff, as she ran from the northeast to the southwest corner of St. Paul street, at Twenty-third street, but also Mrs. Miller when she signalled unto him.

The action of the appellant because of the modification of the appellee's fourth prayer is extraordinary — unprecedented. In effect, its position is that it asks the Court for a ruling in its favor along indicated lines, and when the Court grants such application, refuses to accept the result it sought to accomplish by such application.