Weissman v. Hokamp

Bond, C. J., delivered the opinion of the Court. Appealing from a judgment for damages sustained by a pedestrian in a collision with their taxicab, the appellants present for review two rulings of the trial court. The first is the admission in evidence of a report by the taxicab driver to the Public Service Commission, contrary to the prohibition in section 372 of article 23 of the Code. This ruling the court finds insufficient to require a reversal for retrial, because the statements contained in the report added nothing to the evidence unfavorable to the defendants, for they were contained also in a report to the Commissioner of Motor Vehicles introduced in evidence, as is permitted, for the purpose of proving an admission or a contradiction of the testimony of th,e driver in court (York Ice Machinery Corp. v. Sachs, 167 Md. 113, 127, 173 A. 240), and because the statements seem to this court to be the same in effect as those in the testimony. The second ruling is the refusal of prayers of the defendants for direction of a verdict in their favor because of the absence of legally sufficient evidence to prove negligence of the driver causing the accident, or because of the establishment of contributory negligence on the plaintiff’s part. The accident occurred at the crossing from south to north on the west side of the intersection of Light and Redwood Streets in Baltimore City, at about 12:25 P. M. on Monday, November 19th, 1934. There are street car tracks in the center of Redwood Street for both east and *200 west car traffic, the southernmost rail being about seventeen feet out from the southern sidewalk; and about four feet south of that rail, extending west from the Light Street building line, and the regular crossing for pedestrians, a row of iron posts on heavy bases, provides a safety zone except during the hours of crowded traffic. During other than the crowded hours a movable white disk on top of the westernmost post, bearing the words, “Keep to the right,” is turned west, toward oncoming east bound traffic; and in the crowded hours the disc is turned the other way, so as to give no direction to east bound traffic, but on the contrary to expedite it by sending it through along the car tracks. At the time of the accident complained of it was turned thus, so as to run the traffic through along the tracks. These facts appear from testimony of the plaintiff and a witness on her behalf. She herself did not notice the sign that day. During this, her lunch hour, when the plaintiff, walking north in the middle of the sidewalk on Light Street, came to the Redwood Street crossing, she found that the traffic signal light for the crossing had just turned red, against north bound traffic and giving the right of way to east and west bound vehicles. There were cars parked by the sidewalk to her left, or to the west of her. She waited with other pedestrians on the sidewalk until there seemed to be a clearing of passing vehicles, when she and others started across, still with the red light against them. She testified that, before stepping off the sidewalk, she looked west and failed to see within the distance of a block any vehicle coming east, and thenceforth looked only to her right, that she stopped at just about the southernmost track, to the north of an imaginary extension of the line of posts, and waited to see whether another vehicle coming from the east would come across, but it turned on Light Street. As she stood so, she said, the defendants’ taxicab came from the west, caught her in some way with its fender, and pushed her along about two feet; and to avoid being thrown under the wheel she stepped to the front of the cab and was *201 thrown there. She declared at ‘the time that it was her fault, but testified that she did so to avoid causing trouble to the driver. Her own testimony makes it clear that when, as she said, she looked and saw no vehicle coming, the taxicab was nevertheless there, and in close proximity. To come from more than a block away while she walked out to the track it would have had to rush forward at an incredible speed. Hill v. Philadelphia R. T. Co., 271 Pa. 232, 236, 114 A. 634. And when it collided with her it was going so slowly as to push her only two feet, and to permit her to step to the front of it; and it stopped at the spot. There was no testimony that the speed of the cab was fast, none at all on the movement of the cab, except that of its driver, who testified that he had just started on the change of lights behind a couple of cars in front of him. If the plaintiff looked for oncoming traffic she looked with an unseeing eye, and her testimony on the point could not be considered in the case. Miller v. Baltimore, 161 Md. 312, 316, 157 A. 289; Susquehanna Power Co. v. Jeffress, 159 Md. 465, 470, 150 A. 788; Faucett v. Bergmann, 57 App. D. C. 290, 22 Fed. (2nd) 718; Yellow Cab Co. v. Lacy, 165 Md. 588, 592, 170 A. 190. Testimony of other witnesses to the accident all contradicted the version of the plaintiff, and added nothing to the case to be considered on her behalf. The weight of all the evidence was for the jury and for the court on the motion for a new trial, not for this court on the question of its legal sufficiency to support the verdict. The plaintiff was crossing and taking a position in the street, then, when to her knowledge it was given over to traffic moving across her path. Legum v. State, 167 Md. 339, 348, 173 A. 565. Disregard by a pedestrian of the rule of the right of way does not, under any and all circumstances, amount to contributory negligence preventing recovery for injuries from collision. There might sometimes be no traffic on the right of way creating a risk of collision. Crossing against the right of way at *202 regular crossings gives rise to the same legal situation as crossing between regular crossings, where by statute, Code, art. 56, sec. 209, as amended by Laws .1929, ch. 224, vehicles have a right of way. Nelson v. Seiler, 154 Md. 63, 76, 139 A. 564; Ebert Ice Cream Co. v. Eaton, 171 Md. 30, 187 A. 865. It is notorious that the giving of the right of way alternately to traffic on one street and the other, while an indispensable measure of regulation, is not a completely successful one. Many pedestrians persist in attempting to filter through the traffic moving on the right of way. But there can be no question of their legal situation when doing so. By the very definition of the right of way they have no equal right in the street. They know their movements must be accommodated to those of the vehicles, that they cannot dispute the right of way with them, but must yield it and cross only as the traffic affords an opportunity to do so in subordination to the right given the vehicles. Russo v. Grand Rapids, 255 Mich. 474, 476, 238 N. W. 273; Mertens v. Lake Shore Yellow Cab Co., 195 Wis. 646, 648, 218 N. W. 85; Quaker City Cab Co. v. Fixter (C. C. A.) 4 Fed. (2nd) 327; Barker v. Whittier, 166 Md. 33, 41, 170 A. 578. These principles give the measure both of what the pedestrians are to do, and of what the driver may expect them to do. The plaintiff, however, differentiates her crossing by testimony from which it might be found that she assumed that vehicles were then, and at all times, excluded from moving along the tracks by the presence beside the tracks of the line of posts for a safety zone, that the right of way given did not include that portion of the street bed, and that she was free to occupy that space and assured of safety in it. This, according to the testimony of the traffic officer at the intersection, called as a witness by her, was a mistake. As has been stated, that portion of the street was opened to send the traffic over it. But taking it for granted that this was contrary to the plaintiff’s understanding, and even that she was trapped by the mistake, the driver could not be expected to act *203 contrary to the true fact. He was at liberty to move on the right of way given him, and to expect pedestrians to accommodate their movements so as not to interfere, as pedestrians commonly do. Kelly v. Huber Baking Co., 145 Md. 321, 338, 125 A. 782; McNab v. United Rys. & Electric Co., 94 Md. 719, 729, 51 A. 421; Garvick v. United Rys. & Electric Co., 101 Md. 239, 246, 61 A. 138; Steil Co. v. Washington, B. & A. E. R. Co., 120 Md. 419, 422, 87 A. 838. There is nothing to show that sending the traffic through at times is unusual; the sign is made moveable to effectuate that purpose as required. And no reason is made to appear in this case for concluding that it was other than necessary. But if it should be considered negligent to do so without some form of notice not given, the negligence would not have been that of the driver. He did not make the arrangement, and was merely driving along as the authorities controlling the movements of traffic intended he should. With cars parked at the sidewalk there would seem to have been scant room for him to drive between them and the posts. If the driver, in sufficient time, had seen the plaintiff was standing within the car’s path, and also that, unaware of the danger, she would not move, but would continue so standing until struck, there might have been ground for finding him negligent in not avoiding her. Legum v. State, 167 Md. 339, 355, 173 A. 565. But that ground was not touched upon by evidence. There is no testimony from which a jury could judge of the driver’s opportunity to see the plaintiff and realize, in time to stop or turn aside, that she would be standing in his way. To repeat, the only witness to his movements, he himself, testified that he had just started behind a couple of other vehicles; and the other witnesses testified that the plaintiff was moving forward and walked in front of the cab. This analysis of the case leads a majority of the court to the conclusion that the evidence, however it may be regarded on the question of contributory negligence, is *204 insufficient to support a finding of negligence in the driving of the defendants’ cab. Judgment reversed, without a new trial, with costs.