"I would like Mr. Poe to ask the doctor whether he had given him sufficient facts in that question from which he can answer it with a reasonable degree of certainty." The witness answered: swer, which was overruled, and that constitutes the fifth exception. That motion was renewed later on, and again at the conclusion of all the testimony. Those motions were overruled, and the rulings are present After a most diligent search we have been unable to find any case which held that the error was cured under such circumstances as we have before us. The evidence was very important, as the other two physicians who testified differed in their views of sarcoma: I should say that if the growth developed in the "Yes; I think that is enough information. and, inasmuch as Dr. Manger testified that region in which the injury had occurred, that the sarcoma was due to traumatism, it may the injury would have to be considered as the have had great effect on the jury, especially predisposing cause." as he had attended Ambrose. While the A motion was made to strike out that ancertificate of the judge shows that neither attorney mentioned it in the argument, the fact that the answer had been stricken out was not communicated to the jury. As the court had admitted the evidence over the objection of the defendant, and it was still be-ed by the sixth and seventh exceptions. fore the jury, without any knowledge on The term used in the question is unusualtheir part that there was any question about when it speaks of the injury from the colits competency, it was not only the right, lision as "the predisposing cause," etc. It but the duty, of the jury to consider it. may have some special meaning to the mediWhile the certificate of the judge does not cal profession, but, if it has, it is not exrefer to the other testimony of Dr. Manger, plained in the record. The attorney for the or show how much it was relied on in argu- appellant criticized it, but did not, so far as ment, a considerable part of it was material, the record discloses, find it necessary to inrelevant, and unobjectionable, and presuma- quire of the doctor what it meant. The word bly some of it was referred to in the course "dispose" is defined in the New International of the argument. That would naturally sug-Dictionary, amongst other definitions: gest this most important item of evidence, "To give a tendency to; to make liable; as to even if not referred to. We are, then, of the predispose the mind to friendship; debility predisposes the body to disease." opinion that the error in refusing to strike out the answer to the hypothetical question asked Dr. Manger was not cured by what was done out of the presence of the jury, and we cannot say it was harmless. We have not thought it necessary to further discuss the form of the question-as to whether it trespassed upon the province of the jury, etc. -as what was brought out on cross-examination showed clearly that it should have been stricken out. In the Standard Dictionary under the second head, it is defined, "To make liable or susceptible." It might thus be said to mean, in the connection it was used in this question, whether the injury caused Ambrose's leg to have a tendency to or to be liable to the definition in the Standard, it would apthe development of the sarcoma, or, adopting parently mean whether the injury caused the leg to be liable or susceptible to the development of the sarcoma. While it would have been better to have used a more familiar term, which could be more readily understood by the jurors, the attorneys apparently understood it, as they did not ask the doctor to explain what he meant, and presumably explained it to the jury. Without prolonging the discussion of Dr. Fisher's testimony, we find no reversible error in any of the exceptions in reference to it. [3] The third exception is not pressed, as we understand, and we see no objection to the question and answer contained in it. The fourth, fifth, sixth, and seventh relate to a hypothetical question asked Dr. Fisher. The facts stated in it were, for the most part, similar to those in the one asked Dr. Manger with some additional ones. It stated that Ambrose "received numerous bruises on his body, and that two small bruises appeared There was no error in granting the plainfour or five inches above the left knee"; that tiff's prayers, or either of them. The defend"the leg was opened up about midway be- ant's first, second, and third were properly tween the knee and the hip, and it was dis-rejected. There was evidence tending to covered that he was suffering at that locality show that the appellant was at the time runfrom osteoid sarcoma of a malignant type. He died May 22, 1915, after an amputation of the leg at the thigh in the latter part of November, 1914, or the early part of December." The question was: "Assuming all these facts to be correct, state whether or not, in your opinion, the injury from the collision was the predisposing cause for the development of the sarcoma." The question was objected to, and the objection overruled, as shown by the fourth bill of exceptions. Counsel for the defend ning the automobile, and that there was negligence on her part. The witness Chaney, who was driving another automobile and saw the accident, testified that he distinctly heard the driver of the motorcycle blow the exhaust whistle, which was very loud and shrill, when the motorcycle was between 100 and 150 feet from the intersection of Park Heights avenue and the Valley Road, where the accident occurred. He said: "There was a machine coming towards me, over a small grade, about 300 feet away from the intersection. A young lady was driving it, no signal from the automobile. It was going | every possible way by which death may have about as fast as the motorcycle, between 15 resulted, or an injury could have been susand 18 miles per hour." Again he said: tained. Such is not the law. It would be very difficult to persuade any 12 men that "She had slowed down some, but I imagine she the injury in this case was not the cause of was going between 10 and 12 miles per hour, when she attempted to make the turn. It is the sarcoma, which it is admitted produced very sharp, a right-angle turn. You have to the death. There is ample evidence to susslow down anyway, because the roads are nar-tain such a verdict. row-18 feet, I think-and if you don't slow down considerably, you have to cut the corner very much to get in. Any one coming over 15 miles per hour could not make it at all." On cross-examination he said: "If Mrs. Rosenburg had blown her horn I would most likely have heard it, as I could have heard any horn sounded at that distance, and I did not. I watched the motorcycle all the way up. I saw Mrs. Rosenburg in the driver's seat at the time of the accident. I was 15 or 20 feet from her. Her chauffeur was not driving the machine; she was driving it herself. He could not drive it if she was in the driver's seat. I saw her have hold of the wheel just as she made the turn. The chauffeur did not have hold of the wheel. • The automobile came from the center of the road and cut directly in as she attempted to turn into Park Heights avenue. The accident occurred nearly in the center of the road." Clarence H. Frey, who was driving the motorcycle, testified that he was sitting on the front seat and Ambrose on the rear seat; that Ambrose was not directing or controlling it in any way; that he blew the exhaust horn three times and got no response, and as he got no response he thought the road was clear, and just as he got to the intersection an automobile "jumped out." He said: "When I told her it was her fault, she said she carried no bulb horn, and that the electric horn was broken. According to her statement she had no means of notifying us, by sounding her horn, at all. She said something about being a beginner; that she had not run it long; but was just a learner at it." [6] The fifth prayer is manifestly defective because it ignores the evidence offered by the plaintiff, that the appellant was running the car. The sixth ignores the evidence of the appellant herself that she was in the driver's seat in control of the horn, which the evidence of the plaintiff tends to show was not blown, if she had one; that she had one or both hands on the wheel; that the chauffeur could not reach the hand brake, and could only reach the foot brake "by reaching across her in a very awkward position," to use her language-in short she was at least assisting in running the car at the time of the accident, according to her own admissions. The seventh is faulty because it ignores the facts just spoken of, that she had charge of the horn, and did not use it, according to the plaintiff's evidence, and she had control of the brakes. When it required the jury to find that the defendant "interfered" with the operation of the automobile, that was liable to mislead them under the circumstances. What we have already said is sufficient to show that, in our judgment, the eighth was properly rejected. The tenth was also, as there was some such evidence. The nineteenth and twentieth were clearly properly rejected, and the special exceptions to the plaintiff's first prayer were properly overruled. The defendant's prayers which were granted were as favorable to her as she could ask under the evidence, and the law applicable to the case. The fourth prayer was likewise properly rejected. There is evidence tending to show It follows that the judgment must be rethat the death of Ambrose "was proximately versed, for the error pointed out in reference caused by the accident as alleged in the dec-to the testimony of Dr. Manger, although we laration." find no other reversible errors. [4, 5] If the appellant's theory must pre- Judgment reversed, and new trial awarded, vail, it will be impossible to establish lia- the equitable appellee to pay the costs in bility on the part of a negligent defendant, this court, the costs below to abide the final unless the plaintiff affirmatively excludes result. (129 Md. 432) EPSTEIN et al. v. RUPPERT. (No. 20.) (Court of Appeals of Maryland. Dec. 13, 1916.) 1. MUNICIPAL CORPORATIONS 706(8)—AuTOMOBILE ACCIDENT-INSTRUCTION. In an action for injuries received when plaintiff was struck by defendants' motor truck, plaintiff's first prayer was that, if the jury found that plaintiff was injured, and that the injury was caused by a truck belonging to defendants while driving on a public street at the point alleged, and that the injury resulted directly from the want of ordinary care and prudence of the driver or servant of the defendants in handling and managing the truck, and not from the want of ordinary care and prudence on the part of plaintiff directly contributing to the injury, then plaintiff was entitled to recover. Held, that such prayer was in proper form and properly granted. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706(8).] 2. DAMAGES 216(1)-PERSONAL INJURIESINSTRUCTION. Plaintiff's second prayer was that, if the jury should find for plaintiff, in estimating damages they should consider his health and condition before the injury complained of, as compared with his present condition in consequence of the injury, and also the physical and mental suffering, if any, to which he was subjected by reason of the injury, and should allow him such damages as in their opinion would be fair and just compensation for the injury which he had sustained. Held, that such prayer was properly granted. [Ed. Note.-For other cases, see Damages, Cent. Dig. 88 548, 549; Dec. Dig. 216(1).] 3. MUNICIPAL CORPORATIONS 706(6, 7) AUTOMOBILE ACCIDENT-NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE-QUESTIONS FOR JURY. Questions of defendants' negligence and of plaintiff's contributory negligence held for the jury. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706(6, 7).] 4. MASTER AND SERVANT 332(1)-MUNICIPAL CORPORATIONS 706(6)-AUTOMOBILE ACCIDENT-QUESTIONS FOR JURY. The agency of the truck chauffeur and the ownership of the truck held questions for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1274; Dec. Dig. 332 (1); Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706(6).] TOMOBILE ACCIDENT-INSTRUCTIONS. In an action for injuries received when plaintiff was struck by a motor truck, an instruction that, if when near collision plaintiff jumped from his wagon in front of the truck, when it was too near to stop it, he could not recover, sufficiently covered that issue. swer allowed to stand. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. 706(4).] 9. APPEAL AND ERROR 1051(1)—HARMLESS ERROR-RULING ON EVIDENCE. Any error in the admission of testimony as to the ownership and control of the automobile at the time of the accident was harmless, where evidence of other witnesses was sufficient to establish the ownership and control of the machine. Error, Cent. Dig. 88 4161, 4162, 4165, 4166; [Ed. Note.-For other cases, see Appeal and Dec. Dig. 1051(1).] Appeal from Baltimore City Court; Henry Duffy, Judge. "To be officially reported." Suit by Charles H. Ruppert against Jacob Epstein, Nathan Epstein, Abraham I. Weinberg, A. Ray Katz, and Sidney Lansburgh, copartners trading as the Baltimore Bargain House. From a judgment for plaintiff, defendants appeal. Judgment affirmed. Plaintiff's and defendants' granted prayers follow: Plaintiff's first prayer: If the jury find that on or about the 5th day of April, 1915, the plaintiff was injured, and that said injury was caused by a truck belonging to the defendants while traveling upon Baltimore street at or about its intersection with Eutaw street, public thoroughfares of the city of Baltimore, if the jury so find, and that said injury resulted directly from the want of ordinary care and prudence of the driver or servant of the defendants in handling and managing said truck, and not from the want of ordinary care and prudence on the part of the plaintiff directly contributing to the injury, then the plaintiff is entitled to recover. Plaintiff's second prayer: If the jury shall find a verdict for the plaintiff, then in estimating the damages they are to consider his health and condition before the injury complained of as compared with his present condition in consequence of said injury, and also the physical and mental suffering, if any, to and to allow him such damages as in the opinion which he was subjected by reason of said injury, of the jury would be a fair and just compensation for the injury which he has sustained. Defendants' sixth prayer: The court instructs the jury that the mere happening of the accident complained of raises no presumption of negligence on the part of the [Ed. Note. For other cases, see Municipal chauffeur of the defendants operating the autoCorporations, Cent. Dig. § 1518; Dec. Dig. mobile referred to in the evidence, but the bur706(8).] den is upon the plaintiff to establish by a fair preponderance of affirmative evidence that negligence on the part of said chauffeur caused said accident, and if the minds of the jury were left by the evidence in a state of even balance as to the existence of such negligence, then the verdict of the jury must be for the defendants. Defendants' eighth prayer: The court instructs the jury that, if they and from the evidence that the plaintiff stepped or jumped in the way of the automobile of the defendants when it could not be arrested in its course, and under circumstances where with ordinary care on the part of the chauffeur in charge of said automobile the automobile could not be brought to a pause early enough to save the plaintiff from injury, the defendants are not liable, and the verdict of the jury must be for the defendants. Defendants' ninth prayer: The court instructs the jury that, if they find from the evidence that the injuries complained of resulted from an unavoidable accident unmixed with negligence on the part of the servant or chauffeur of the defendants, in charge of the automobile referred to in the evidence, then the verdict of the jury must be for the defendants, and by negligence is meant failure to exercise such reasonable care as a reasonably prudent person would have exercised under like circum stances. Defendants' tenth prayer: The court instructs the jury that, if they find that the automobile mentioned in the evidence was being driven east on Baltimore street in charge of the servant or chauffeur of the defendants, and was being driven at a reasonable rate of speed and on the right of the middle of said street, and shall further find that a wagon on which plaintiff was riding was being driven west on said street on or near the west-bound street car tracks in said street, and to the left of the center of said street, and shall further find that, when the wagon and automobile were abreast of one another, the plaintiff suddenly stepped or jumped in the way of said automobile when it could not be arrested in its course, and under circumstances where with ordinary care on the part of the chauffeur the automobile could not be brought to a stop in time to save the plaintiff from injury, the defendants are not liable, and the verdict of the jury must be for the defendants. Defendants' fourteenth prayer: The jury are instructed that, if the minds of the jury are left by the evidence in a state of even balance as to whether it was an automobile in charge of defendants' chauffeur that was the cause of the accident, then their verdict must be for the defendants. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ. Aubrey Pearre, Jr., of Baltimore (Barton, Wilmer & Stewart, of Baltimore, on the brief), for appellants. William Colton, of Baltimore, for appellee. BRISCOE, J. This is a suit by the plaintiff against the defendant company, trading as the Baltimore Bargain House, to recover damages for personal injuries received by him on the 5th day of April, 1915, by reason of the alleged negligence of the defendants in driving an automobile along Baltimore street, one of the thoroughfares of Bal tains four bills of exceptions. The first, second, and third present questions upon the admission of evidence, and the fourth relates to the rulings of the court upon the prayers, and to the overruling of the defendants' special exception to the plaintiff's first prayer. From a judgment in favor of the plaintiff for the sum of $500, the defendants have appealed. The declaration in the case alleges that, while the plaintiff was in the act of prudently and carefully crossing Baltimore street at or about the intersection with Eutaw street, they being public thoroughfares of Baltimore city, the defendants negligently and carelessly drove, managed, and conducted, and caused and procured negligently and carelessly to be driven, managed, and conducted, an automobile along and upon said Baltimore street so that on the day and year mentioned, and directly because of the premises, the plaintiff was knocked down and then and there seriously and permanently injured about the head, body, and limbs, caused to suffer great physical pain and mental anxiety, disqualified in part from pursuing his ordinary avocation, whereby he has lost the emoluments he otherwise would have received from his said calling, has been obliged to employ medical aid and purchase medicines and appliances at great cost and expense, and is otherwise injured and damaged, and that his injuries were directly caused by the negligence and want of care of the defendants, their agents and servants in the premises, and without negligence or want of care on the part of the plaintiff directly thereunto contributing. The facts relied upon by the appellee to sustain the action are these: The plaintiff testified that he was a stage carpenter and was about 29 years old. He stated: That on April 5, 1915, "I was coming west on Baltimore street on a laundry wagon. I had got on the wagon with the man. He was going my way, the way I was going. I had a date at the Palace Theater at 11 o'clock. And coming west on Baltimore street we crossed Eutaw, which was about 20 minutes of 11, as near as I can judge, and we stopped on the far side of the street, and I looked ahead before I got off, and there wasn't anything in the block at all, no vehicles at all, but one truck. I seen the big truck was nearer Paca street than it was to Eutaw, and in stepping off the wagon, rather, I just stepped on the ground, when the truck hit me, what I knowed was a truck, because naturally my back was to it, and I didn't think that the automobile could-would-get to me before I got off the wagon, and the wagon that I was on had started off again, just had started when this truck hit Naturally it spun me around, and I fell down, and when I looked around for the truck it was down between Eutaw and Howard streets about midway of the block." me. He further testified that the wagon in which he was traveling was going west on Baltimore street, and the defendants' truck or automobile was traveling east, and that he was struck on the left foot above the heel there was no officer there. Witness was on the lookout for an officer, and when about 20 feet from the crossing saw this man get up. He also testified: northwest corner of Baltimore and Eutaw | fic corner, but at the time of the accident streets, as he stepped down from the wagon to the street, and as soon as he alighted on the ground that he had an unobstructed view of Baltimore street, and before leaving the wagon he looked ahead and saw the automobile, it was the only vehicle in the block, except the wagon, between Eutaw and Paca streets, the block being the length of the ordinary city block, and that, after locating the automobile, "used my left foot on the shaft, then down with the right foot and threw my left foot on the ground, and that is how he struck me." He testified upon cross-examination as follows: "Q. How far away was this automobile when you saw it? A. Well, it was closer to Paca street than it was to Eutaw. Q. Well, you were about 15 feet, you say, from the corner of Eutaw street? A. About 10 or 15 feet; yes. What is the distance of that block, do you know, between Paca and Eutaw streets? A. I judge it to be about 150 feet. Q. About 150 feet? A. Yes, sir. Q. How much closer to Paca street was this truck than it was to Eutaw street when you first saw it? A. Well, I judge about onethird of the block. Q. In other words Witness (interrupting): About one-third up from Paca street, this way. Q. Then at any rate the truck was not much over 100 feet from you? A. That is, if the block is only 150 feet? Q. But I am asking you how far? A. I am just giving you a rough idea. Q. I want to know, to the best of your idea, how far this truck was from you-some idea of how far you would say the truck was from you? A. Figuring the block was 150 feet, I would judge the truck was about 100 or 110 feet away from me." John H. Kahl, the chauffeur, testified that he had been in the employ of the defendants for three years, and held that position in April, 1915, and remembered making a trip on the day of the accident. As he neared Eutaw street he noticed a wagon coming across the street. "The young man was about to get up; I didn't pay no attention, I kept on going." The young man was sitting on the left-hand side of the wagon, and started to get up, at which time he was about 20 feet from Eutaw street, and right near the German Bank at the corner of Baltimore and Eutaw streets. He did not see young man get down off the wagon, and did not see his automobile strike the man. He stated that the steering wheel of his automobile is on the left-hand side, which was the side of the automobile nearest the wagon, and the front wheels. of the automobile "are right. under the seat; I sit right over the front wheels." The hub extends beyond the name "Baltimore Bargain House" in the front, that is, the wind shield, but the front wheels are right under the seat. "Q. Now, then, if you had hit any one with the front wheels of that truck, could you have seen him? A. Yes; I could have." He further testified he was going about 5 or 6 miles an hour, with the current shut off, drifting down a little grade; that he was drifting because it was a hill, and he never comes down a hill fast; the truck was a 32-ton truck, and is a top That he did not see the man get down from the wagon, and the only reason he thought he was going to get off was that he got up from the seat; that he never saw the wagon until he was right alongside of it. "Q. How is it you did not see it before? A. I wasn't looking. I was just looking in front. I wasn't looking on the other side of the car track. I was looking straight. Q. You never saw this wagon until you were right alongside of it? A. Yes, sir. Q. And then you saw the young man getting up? A. Yes, sir. Q. How is it you came to notice his getting up if you did not see the wagon until then? A. Well, he was quite a tall young man, and all I could see was somebody getting up, and that was all. I went right on down Baltimore street. Q. When you saw him seeing a man get up in a moving vehicle? I getting up what impressed that on your mind, judged the man was going to get off or something. Q. Then why didn't you stop your vehiside next to your wagon, wasn't he? A. I supcle right there? He was going to get off the pose he was. Q. Now, why didn't you stop your vehicle? A. Well, sir, I didn't think the young man was going to jump. Mr. Colton (interrupting): If you thought he was going to get off, why didn't you stop? A. I didn't think the jump? A. I don't know, sir. Q. Then you do young man was going to jump. Q. Well, did he not know whether he jumped or not? A. No, sir." William Day, the driver of the wagon upon which the plaintiff was riding just prior to the accident, testified, in substance, that on the day of the accident, while driving west on Baltimore street in the car track, he saw an automobile coming towards the wagon about the time the plaintiff started to get off at Baltimore and Eutaw streets; that the automobile was about 50 feet from the wagon when he stepped down from it. He also testified that this automobile was the only one in the block at the time, and that he heard some one holler almost as soon as the plaintiff got off. Police Officer Smith, who investigated the cause of the accident for the purpose of making the usual police report, testified that he ascertained from the employés at the Baltimore Bargain House that the name of the chauffeur who operated the truck was John H. Kahl, license No. 1014, and in describing the truck said: "It was a great big truck, the Baltimore Bargain House name on it, used to convey freight to and from, operated by electricity, mechanically, not by horses." This outline and review of the controlling facts of the case will be found sufficient to enable us to pass upon the legal questions presented and raised by the rulings of the court upon the prayers. [1, 2] The plaintiff's first and second prayers are in the usual form, and have been frequently approved by this court in negligence cases. They were properly granted by the court. |