Summary
In Pennsylvania R. Co. v. Simmons, 159 Md. 114, an automobile stalled on the railroad track and was struck by a train of the appellant.
Summary of this case from Martin v. SweeneyOpinion
[No. 42, January Term, 1930.]
Decided May 2d 1930.
Last Clear Chance — Accident at Railroad Crossing — Harmless Error — Evidence as to Mental Condition.
Error in allowing questions as to plaintiff's mental condition to be asked of a witness whose acquaintance with plaintiff was too slight to make his opinion of value held harmless, in view of the answers, which did not express any opinion, but merely stated what plaintiff's general condition appeared to the witness to be on the occasions when he saw her. p. 121
Plaintiff's attending physician, who testified that he had studied and was specially interested in mental diseases, could properly be asked his opinion as to plaintiff's mental condition. p. 121
A witness who had testified without objection to the mental condition of plaintiff, was properly allowed to say whether the condition to which she had testified was the same at the time plaintiff signed a statement offered in evidence. p. 121
The doctrine of last clear chance applies when, in the exercise of ordinary care, defendant might have discovered plaintiff's peril in time to avoid the accident, as well as when he actually knew of such peril. p. 123
In an action for injuries received by plaintiff when the automobile in which she was sitting became stalled on defendant's track, held that there was evidence to take the case to the jury on the theory that defendant's employees could, in the exercise of ordinary care, have discovered plaintiff's peril in time to avoid the accident, applying the doctrine of last clear chance. p. 122
In an action for injuries received by plaintiff when the automobile in which she was sitting became stalled on defendant's track, the question of plaintiff's contributory negligence in failing to escape, after the automobile became stalled, held for the jury. p. 125
In an action on account of injuries received by plaintiff when the automobile in which she was riding was struck by a train while stalled on defendant's railway track, a prayer that plaintiff was entitled to recover provided defendant's engineer could have avoided the accident by the exercise of ordinary care after he saw or, by the use of ordinary care, might have seen, that plaintiff was on the track and in danger of being struck by the train, unless plaintiff, by the exercise of ordinary care, could have extricated herself from her perilous position, correctly presented the issue of last clear chance. pp. 116, 125
Decided May 2d 1930.
Appeal from the Circuit Court for Wicomico County (PATTISON, C.J., BAILEY and DUER, JJ.).
Action by Stella Simmons against the Pennsylvania Railroad Company. From a judgment for plaintiff in the sum of $15,000, defendant appeals. Affirmed.
The plaintiff submitted the following prayers:
First. The plaintiff prays the court to instruct the jury that the plaintiff is entitled to recover, provided the engineer of the defendant's train could have avoided the accident by the exercise of ordinary care after he saw, or by the use of ordinary care might have seen, that the plaintiff was upon the railroad track and in danger of being struck by the train, unless they further find that the plaintiff by the exercise of ordinary care and caution, could have extricated herself from the perilous situation in which she was placed and thereby avoided the injuries.
Second. The plaintiff prays the court to instruct the jury that if they find for the plaintiff, in estimating the damages the jury are to consider the health and condition of the plaintiff before the injury complained of, as compared with her present condition in consequence of such injuries, and whether the same are in their nature permanent, and how far they are calculated to disable plaintiff from engaging in those business pursuits for which in the absence of such injuries she would have been qualified; and also the physical and mental suffering, if any, to which she has been subjected by reason of said injuries, and the jury are to allow such damages as in their opinion will be fair and just compensation for the injuries suffered.
The defendant submitted the following prayers:
First. The court instructs the jury that under the pleadings and evidence in this case there is no evidence legally sufficient to entitle the plaintiff to recover and their verdict must be for the defendant.
Second. The court instructs the jury that there is no evidence in this case legally sufficient to entitle the plaintiff to recover and their verdict must be for the defendant.
Third. The court instructs the jury that there is no legally sufficient evidence that the accident complained of was the direct consequence of any neglect on the part of the defendant, or its employees, and the verdict of the jury must be for the defendant.
Fourth. The court instructs the jury that from the uncontradicted evidence in this case it appears that the plaintiff was guilty of negligence directly contributing to her injury and that the verdict of the jury must be for the defendant.
Fifth. The court instructs the jury that the burden of proof rests upon the plaintiff to establish by a preponderance of evidence that the plaintiff was injured solely as the result of the negligence of the defendant, and if the minds of the jury shall be in a state of even balance or equipoise as to whether the defendant was guilty of such negligence, then their verdict must be for the defendant.
Sixth. The court instructs the jury that it is the duty of an automobile driver when approaching the tracks of a railroad in the country to have his machine under control and to look and listen for a train which may be approaching, and if the view is obstructed in approaching such tracks to stop, look and listen to ascertain whether a train is in fact approaching and if the jury shall find that the driver of the automobile in this case failed to observe those precautions, and that the accident could not have been avoided by the exercise of an ordinary degree of care on the part of the defendant, then the verdict of the jury must be for the defendant. Crain Case, 123 Md. p. 337.
Seventh. The court instructs the jury that if they shall find from the evidence that at the time of the accident mentioned in the evidence the female plaintiff was a passenger in the automobile mentioned in the evidence, then it was the duty of the driver of the said automobile to exercise the highest degree of care and skill practicable under all the circumstances for her care and safety, and if the jury shall further find from the evidence that the driver of the said automobile failed to use such care, and that his failure to do so was the direct and proximate cause of the accident, and that if he had exercised such care the accident would not have occurred, then the verdict of the jury must be for the defendant. Crain Case, 123 Md. p. 338.
Eighth. The court instructs the jury that if they shall believe from the evidence that when the Simmons automobile stopped upon the tracks at the crossing, described in the evidence, the defendant's train was so close to the said crossing and to the said automobile that the agents and servants of the defendant by the exercise of ordinary care and caution could not have stopped the said train before it struck the said automobile, then their verdict must be for the defendant.
Ninth. The court instructs the jury that if they shall believe from the evidence there was a sufficient interval between the time the Simmons automobile stopped on the crossing mentioned in the evidence and the time said automobile was struck by said train for the plaintiff to have escaped from said automobile and to have avoided injury to herself, and if they shall further believe from the evidence that an ordinary prudent and careful person under such circumstances would have gotten out of said automobile and sought a place of safety before said automobile was struck by said train, then their verdict must be for the defendant, even though they may also believe from the evidence that the agents and servants of the defendant by the exercise of ordinary care and caution could have stopped said train before it struck said automobile.
Tenth. The court instructs the jury that if they shall find from the evidence that at the time of the accident complained of the female plaintiff was a passenger in and riding with the driver on the front seat of the automobile mentioned in the evidence, then it was the duty of the plaintiff to take observations of dangers and to avoid them if practicable and otherwise to exercise ordinary care to avoid injury to herself; and if the jury shall find from the evidence that the plaintiff prior to the accident knew or saw warnings of the existence and location of the railroad crossing where the accident occurred; and if they shall further find from the evidence that before said automobile went upon said crossing she neither suggested to the driver of the said automobile that it be stopped for the purpose of looking and listening for approaching trains nor protested at the failure of the said driver so to do, then the verdict of the jury must be for the defendant.
Eleventh. The court instructs the jury that in order for the plaintiff to recover in this case the jury must believe from the evidence that the accident complained of resulted solely from the failure of the defendant or its employees, to use reasonable and ordinary care in the operation of the train mentioned in the evidence, and that the said accident was not directly contributed to by any want or failure of the plaintiff to exercise reasonable caution and prudence to avoid injury to herself.
Twelfth. The court instructs the jury that if they shall believe from the evidence that the injuries complained of resulted from the failure of both the plaintiff and defendant to use due care and caution to avoid the collision between the automobile in which the plaintiff was riding and the train of the defendant, then their verdict must be for the defendant, without regard to whose negligence was greater. Ward Case, 111 Md.
Thirteenth. The court instructs the jury that the defendant's trains had the right of way over its tracks across the public highway at the crossing which was the scene of the accident in this case, and that it was the duty of any traveler on said highway before attempting to cross said tracks to stop, look and listen for any trains which might then be approaching said crossing on said tracks, and if the jury shall find from the evidence that the plaintiff prior to the time of the accident knew or saw, or by the exercise of ordinary care and prudence could have known or seen, warnings of the existence and the location of the said crossing, and if they shall further find from the evidence that before the automobile in which the plaintiff was riding went upon said crossing she neither suggested to its driver that it be stopped for the purpose of looking and listening for approaching trains nor protested at the failure of the said driver so to do, then the verdict of the jury must be for the defendant. Fourteenth. The court instructs the jury that there is no evidence in this case legally sufficient to entitle the jury to find that the agents or servants of the defendant negligently and carelessly and without proper warning to the plaintiff operated the train which collided with the automobile of Howard T. Simmons in which the plaintiff was riding and injured the plaintiff as alleged in the declaration, and their verdict, therefore, must be for the defendant, upon the issues joined in the pleadings.
Fifteenth. The court instructs the jury that if they shall find from the evidence that the Simmons car stalled upon the crossing at which the collision occurred, it then became the duty of the plaintiff when she discovered the peril in which she was placed to watch for any approaching train in order that she might extricate herself from the perilous position and seek a place of safety and if the jury shall find that she had the opportunity and time in which to do so and failed to use ordinary care and caution in doing so, then their verdict must be for the defendant.
The cause was argued before BOND, C.J., URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.
T. Sangston Insley and F.W.C. Webb, with whom were Carroll E. Bounds and Woodcock Webb on the brief, for the appellant.
Emerson C. Harrington and Arthur L. Jackson, with whom were Harrington Harrington and Miles Bailey on the brief, for the appellee.
This suit grows out of a crossing accident on July 4th, 1928. Appellee, who was plaintiff below, together with her husband and three little girls, two of whom were her children, was riding in an automobile driven by her husband, on the public road leading from Berlin to Ocean City. The crossing is a few hundred feet east of the town of Berlin. The automobile stalled on the railroad track and was struck by a train of defendant. Plaintiff's husband was killed and she was seriously injured. She sued the defendant for her injuries and obtained a verdict. This appeal is from a judgment on that verdict.
There are eight exceptions in the record, seven to rulings on evidence and one to the ruling on the prayers.
The first and second exceptions are to permitting interrogatories to a non-medical witness as to the mental condition of plaintiff, before and after the accident. The objections should have been sustained. Apart from other reasons, the acquaintance of witness with plaintiff was too slight to make his opinion of any value. But in view of his answers the errors were not prejudicial. The witness did not undertake to express an opinion of her mental capacity; but simply stated what her general condition appeared to be on the occasions when he saw her before and after the accident. He testified to facts as he saw them. City Pass. Ry. Co. v. Nugent, 86 Md. 349, 360; Zipus v. United Railways, 135 Md. 297, 301. The third, fourth and fifth exceptions were to questions asked the attending physician. The objection was that he was not an expert on mental diseases. But apart from the liberty allowed in the examination of medical witnesses, the witness testified that he had studied and was specially interested in this branch of his profession. There was no error in the rulings. The sixth exception was to permitting a relative to testify that while plaintiff was in bed she complained of headaches. No error. The seventh exception was to permitting witness, who had testified without objection to the mental condition of plaintiff, to say whether the condition she had testified to was the same at the time plaintiff signed a statement offered in evidence by defendant. No error.
The real controversy in this case was as to the ruling on prayers in the eighth exception.
The plaintiff offered two prayers, both of which were granted, and the defendant fifteen, of which the fifth, sixth, eighth and fifteenth were granted, and the first, second, third, fourth, seventh, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth were rejected. The reporter is requested to set out all the prayers.
While plaintiff alleged in her declaration, as part of the negligence of defendant, that defendant failed to give any warning of the approach of the train to the crossing and offered some testimony to support the allegation, the evidence to the contrary was so overwhelming that the claim on that ground was practically abandoned. On the other hand defendant attempted to show contributory negligence on the part of plaintiff in that she failed to warn her husband of the approach of the train and to protest against his driving on the track, but there was no evidence to support these charges. The real contention of plaintiff, as appears from the record, was that after the automobile was driven on the track it became stalled at a time when the train was far enough from the crossing to have enabled the defendant, by the exercise of ordinary care, to have discovered plaintiff's peril and to have avoided the accident. That is, she invoked the doctrine of "last clear chance." There was evidence sufficient to take the case to the jury on this point, although the evidence to the contrary was very persuasive.
On the part of the defendant the real contentions were: (a) That the doctrine of "last clear chance" was not applicable to this case because when the automobile went on the track and the plaintiff was first in peril, the train was so near the crossing that defendant's employees could not by the exercise of ordinary care have stopped the train in time to have avoided the accident. Defendant's testimony supported this contention, but plaintiff offered testimony tending to prove the contrary, and it was enough to take the case to the jury on that point. (b) That there was no evidence that defendant's employees had actual knowledge of plaintiff's peril in time to have avoided the accident. That contention is supported by the record, and appellant strongly argues that the court should have withdrawn the case from the jury on that ground. (c) That the evidence so clearly showed that plaintiff had time to escape after the automobile became stalled, that the court should have declared as a matter of law that it was a case of concurrent negligence.
The basis of defendant's contention (b) is that to hold on the facts of this case that anything short of actual knowledge by defendant's servants of plaintiff's peril would make applicable the doctrine of "last clear chance" would be contrary to the decision in Neubeur's Case, 62 Md. 391, where at page 398 Judge Alvey said: "The general principle is, that where both parties by their negligence directly contribute to the production of the accident, neither has a right to recover of the other for injuries sustained thereby. But there are exceptions to this general rule; and in cases like the present, the exception is, that if the defendant, or those acting for it, had become aware of the perilous situation of the plaintiff, though that peril had been incurred by the negligent or even reckless conduct of the plaintiff, yet the defendant or its agents would be bound to use all reasonable diligence to avoid the accident. 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 the effort to save him from the impending danger."
Defendant insists that the language quoted excluded the idea of holding the defendant responsible, under the "last clear chance" doctrine, because the defendant or its agents might have discovered plaintiff's peril by the exercise of ordinary care.
This identical point was made in Consol. Ry Co. v. Armstrong, 92 Md. 554, and in Payne, Director General etc. v. Healey, 139 Md. 86. In the Armstrong case, supra, this court, in an opinion by Judge Schmucker, upheld prayers which instructed the jury that if they found the plaintiff guilty of contributory negligence, that would not disentitle him to recover, if the defendant's motorman could have avoided the accident by the exercise of due care after he saw or ought to have seen the plaintiff's peril. The appellant in that case cited the Neubeur Case, supra, as containing a statement of the views held by the court on this subject prior to more recent decisions. Commenting on this contention, Judge Schmucker said: "The fact, however, is, that long prior to the decision of that case ( Neubeur) the use of precisely the same form of modification of the general doctrine (of contributory negligence) as that employed in two prayers now under consideration had been definitely sanctioned by this court in N.C.R. v. Price, 29 Md. 436; B. O.R. Co. v. Trainor, 33 Md. 554; and Klipper v. Coffey, 44 Md. 128, and it was declared to be `the settled law of this state' in the case of B. O.R. Co. v. Mulligan, 45 Md. 494. The modification may be regarded as having originated in the cases of Davis v. Mann, 10 Meeson Wels., 546, and Tuff v. Warman, 94 Eng. Com. Law Reps., 573, both of which were cited with approval in Price's and Mulligan's Cases, supra. * * * The difference between the modification of the general principle recognized as proper in Neubeur's Case and that sanctioned by this court in the recent cases is simply that in the former case the defendant was held liable if he could, by the exercise of reasonable care after he became aware of the plaintiff's peril, have averted the accident, and in the latter cases he was held liable if he could have prevented it after he became, or ought to have become aware of the peril. There is no difference in principle between these two forms of instruction to the jury, for it cannot be seriously contended that when the defendant is in a position from which he ought to see or by the exercise of reasonable care could see the plaintiff's peril, he may avert his face or close his eyes and not see it and then escape liability for an injury resulting from such conduct on his part. As was said by this court in Cooney's Case, 87 Md. 268: `The law will not permit the loss of life or limb or even property to be deliberately and carelessly inflicted, when it could by reasonable care and caution be averted, merely because the injured person was negligent.'" The Armstrong case, supra, was cited with approval in Payne, Director General etc. v. Healey, 139 Md. 86, 97, and the same conclusion reached.
But the appellant urges that these were cases of accidents at street crossings in cities, and cites Westerman v. United Railways Co., 127 Md. 231, and other cases, to the effect that a different degree of care and responibility is required of railroad companies in using the streets of a municipality from that required in the open country. This, however, is a difference in degrees and not in principle. The difference is merely in what constitutes ordinary care in the respective circumstances.
Defendant's contention (c) cannot be sustained. This case is a striking illustration of the rule stated in Cook v. Balto. Traction Co., 80 Md. 558, and in B. O.R. Co. v. Hendricks, 104 Md. 76, 84, viz: "Where the nature and attributes of an act relied on to show negligence contributing to an injury sustained can only be determined correctly by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the court to determine its quality as matter of law."
Bearing in mind the principles above described, the rulings on the prayers may be briefly disposed of.
Plaintiff's first prayer correctly presented to the jury the issue of "last clear chance." Her second prayer was the ordinary damage prayer. Defendant's first, second, third, fourth, and fourteenth prayers asked for a directed verdict in favor of defendant and were properly refused. Its granted prayers presented the case to the jury from the defendant's point of view at least as favorably as it was entitled to ask. Its seventh, tenth, and thirteenth prayers ignore the last clear chance doctrine on which the case was tried. Such part of the seventh prayer, if any, as is good, is covered by its sixth prayer, which was granted. There was no evidence to support the latter parts of the tenth and thirteenth prayers. Its ninth prayer was covered by its fifteenth prayer, and its eleventh and twelfth prayers were covered by its fifth and fifteenth prayers.
Judgment affirmed, with costs to appellee.