For the purposes of this memorandum the following facts are conceded by the demurrer prayer in this case and may be assumed; Street car tracks run east and west along the middle of Redwood Street in Baltimore City. South of the tracks and west of the intersection of that street with Light Street several iron pipes set in heavy movable iron bases are used to fence in a narrow space next the east bound car tracks, primarily for the protection of persons entering or leaving cars at that point. The arrangement is a common one familiar to all travelers on city streets, and the space is usually known and was referred to in this case, even by the police, as a "safety zone." A metal disk bearing the legend, "Keep to the Right," was mounted on a standard at one end of the zone. At times that sign would be turned so that its edge would be presented to east bound traffic and its face to the southern sidewalk of Redwood Street; at others its face would be towards east bound traffic on Redwood Street and its edge towards the sidewalks. There is a traffic light at that intersection, and at the time of the accident the sign faced the sidewalk.
On the day of the accident the plaintiff was walking north on Light Street. When she reached Redwood, the light was against north bound traffic. She waited a moment and the east bound traffic cleared. She then walked over to the safety zone and was standing in the pedestrian crossing within a space which would have been bounded by the lines of the safety zone had they extended so far, two or three feet from an end rod of the safety zone. Other persons were standing near her, and the policeman on duty there said that he thought the "crowd hid the view of the car and she couldn't see it." While *Page 205 she was in that position, a cab east bound was driven through the safety zone at from ten to fifteen or eighteen miles an hour, struck and injured her. She testified that when she started towards the safety zone she looked for east bound traffic but saw none then, that she did not look west after she reached the safety zone, and that when she was struck she was standing still looking for west bound traffic.
A majority of the court reached the conclusion that these facts, if true, afford no evidence legally sufficient to permit an inference of primary negligence on the part of the driver of the taxicab. Or to put it another way, they reached the conclusion that the act of the driver in driving his cab through a safety zone in which a group of people were standing at the rate of fifteen or eighteen miles an hour in such a way as to strike one of the group was due care as a matter of law. And, if I understand it, the reason for that conclusion is that the traffic light was against northbound traffic, and the "Keep to the Right" sign so arranged as not to be legible to east bound vehicular traffic. I find myself unable to follow that reasoning.
Obviously the traffic light could not change the character of the fenced off space, or convert what was in fact a safety zone into what was in fact not a safety zone. The function of the light is to alternately stop and release lines of traffic flowing transversely, so as to give each in turn an opportunity to proceed. It has no connection with safety zones, is wholly independent of them, and the only possible relation between the two is that the safety zone may afford pedestrians who have crossed one half of a street a refuge where they may stop in safety until the changing light permits them to cross the remaining half.
Nor could the mere turning of the "Keep to the Right" sign have that effect. The iron uprights were still there, and the testimony in the record is that they were connected by chains. The sign could have been turned by anyone. Ordinarily the police arrange it, but there is *Page 206 no evidence that they did so on the day of the accident. A collision might disarrange it, or persons waiting in the zone could turn it either by accident or design, yet, if it is turned, no matter how or why or by whom, the mere fact that it faces the sidewalk instead of the traffic, in the view of the majority, converts what was an instant before a safety zone into a forbidden space which pedestrians may not enter except at their peril.
But while safety zones are primarily for the safety and convenience of street car patrons, they are also for the safety and convenience of all pedestrians who may have occasion to cross the street where they happen to be located. It may happen that the light will change after a pedestrian leaves the sidewalk, releasing traffic against him. In such a case the zone gives him what should be a place of safety where he may remain until the light changes again. Whether he intends to take a street car is wholly irrelevant, because his safety should depend, not upon the ability of the drivers of vehicles approaching the zone to read his mind, but upon the inviolability of the safety zone in which he has taken refuge. For as stated in a California case: "The travelling public has the right to assume that a safety zone or station is what its name implies, namely, a place of safety reserved for those waiting to board or depart from street cars at that point, `an area or space officially set apart * * * for the exclusive use of pedestrians. * * *'" La Sance v. Casey,211 Cal. 383, 295 P. 520, 521. In Code, art. 56, sec. 173 (Ed. 1935), a "safety zone" is thus defined: "The term `safety zone' shall include all parts of the public highways or private rights of way which are elevated above the traveled road bed, or set apart therefrom for the exclusive use of pedestrians or street car passengers and which are guarded or protected against vehicular travel by posts, plantings, curbing or otherwise, or which are appropriately marked or designated as safety zones by duly constituted State or municipal authorities." He should be entitled to presume that, whether the traffic is routed to the right or to the *Page 207 left of the safety zone, in no event will it invade the zone itself. Otherwise instead of being a safety zone the space would be a death trap, for, after luring travellers into it by its misleading appearance of safety, they would be exposed to all the hazards of traffic, without the apparent need for the vigilance they would naturally exercise if they were without the apparent protection of the safety zone.
Moreover, in the very nature of things persons operating motor vehicles along city streets must take notice of the obvious and universally known fact that persons are entitled as of right to be in a position where they may leave or board surface railway cars. It may well be that a pedestrian may start for the car tracks from the sidewalks with the traffic light permitting his progress in that direction, but that it will change before or as he reaches the tracks, or it may be that, even though the light is against him, the absence of traffic makes it safe for him to proceed to the car tracks. When he reaches the car tracks under such conditions, he is in no sense negligent, and should be entitled to presume that persons operating motor vehicles will anticipate his possible presence and exercise reasonable care to avoid injuring him. Notwithstanding the incredible volume of motor traffic, no satisfactory substitute for the street car for mass transportation has been adopted, and the countless millions of persons who patronize such cars are entitled to protection in their undoubted right to patronize them. Such persons cannot board or leave such cars at the sidewalk, because the car tracks are in the middle of the street. To board the cars they must be where the cars stop, not on the sidewalk where they do not stop. Yet the effect of the majority opinion appears to be that persons operating motor vehicles are under no duty of anticipating the presence of pedestrians at the very place in the street where they must be if the street car system is to function at all. Even if there were no safety zones, nevertheless such operators, under universally known conditions, should, it seems to me, be bound to anticipate that persons *Page 208 may be near the street car tracks at intersections where street cars stop. A fortiori they should be bound to anticipate the presence of pedestrians in safety zones.
In this case the pedestrian is charged as a matter of law with awareness of the approach of the taxicab, while the cab driver is as a matter of law assumed to be ignorant of the presence of the pedestrian, or the group of which she was a part, although the same opportunity of knowledge was open to both. That result involves the theory that the pedestrian was a sort of outlaw and bound to discover and avoid the cab, while the cab driver was authorized to drive through a safety zone without exercising any vigilance or care to discover the presence of the pedestrian at a place where he should have anticipated pedestrians might be.
These comments seem to be in harmony with the view taken generally by the courts and text-writers. In Huddy, Encyclopediaof Automobile Law, secs. 19 and 26, it is said:
Section 19. Safety Zones. "When one reaches a safety zone in a street, out of which vehicles are expected to remain, he may reasonably rely on the security thereby expected to be afforded. If he is struck by an automobile while in such a location, it is reasonable to charge the driver thereof with the results of the collision."
Section 26. Nonpassengers. "Pedestrians, who are crossing the street close to a standing street car, as well as the passengers of the car, are entitled to rely on the obedience by motorists of regulations, and may avail themselves of the benefit thereof in case of a collision. The government may well be said to be as interested in protecting the lives and limbs of non-passengers as it is in protecting those who are passengers; and it is recognized that the former are in no better position to protect themselves than are the latter."
In Jaroscz v. Geisler, 219 Mich. 283, 189 N.W. 12, where deceased was struck by an automobile within two feet of the tracks at a usual stopping place for street cars, the court said: "Whether or not he intended to *Page 209 board the car or to cross the street to the sidewalk, he had a right to believe that, while he was within that area, he would not be run down by an automobile. He had a right to assume that the driver of the automobile would exercise reasonable care and not drive his machine into the place where passengers are accustomed to get on and off of street cars."
And much to the same effect are Kinear v. Guthrie,113 Kan. 692, 216 P. 280, 281, and Collins v. Perry, 241 Mich. 361,217 N.W. 32, 33.
The majority opinion stated that 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." As I see it there are two fallacies in that statement: One, that the plaintiff was "crossing," when the evidence shows that when she was struck she was not crossing at all but had crossed to a place just east of the safety zone and was standing still; the other, that the street was "given over" to the traffic moving against her course, because that assumes the principal question in the case, that the safety zone as a part of the street was not a safety zone, but given over to traffic.
The case of Legum v. State, 167 Md. 339, 348, 173 A. 565 is hardly in point, first because in that case the court was not dealing with a safety zone at all and, second, because on the evidence in that case it was held that there might be a finding that the automobile driver was negligent. Ordinarily the liability of one who drives an automobile into a person standing in a safety zone, or near railway tracks at a car stop, does not turn upon the existence of primary negligence, for ordinarily that is conceded, but upon contributory negligence, as in theLegum case. For "Normally, one standing in a safety zone might well expect automobiles would not be driven into it." Scott v.Vaughn, 140 Kan. 529, 37 P.2d 1012, 1013. See, also,Casteel v. Yantis-Harper Tire Co., 183 Ark. 912, 39 S.W.2d 306. Moreover, there is no "giving over" of the street to traffic by the display of a red or green light. No statute defines the relative rights *Page 210 of vehicular and pedestrian traffic at intersections where traffic is controlled by lights, or even by traffic officers, nor was there offered evidence of any ordinance or police regulation providing such a definition. It is of course common knowledge that traffic is and of obvious necessity must be guided and controlled by lights and traffic officers at busy intersections, but, in the absence of some statute, ordinance, or valid police regulation, it is not apparent how a highway may be "given over" to traffic proceeding in a given direction, so that regardless of traffic conditions persons proceeding against the light forfeit the right to have others using the street exercise ordinary care to avoid injuring them. Code (1935 Supp.), art. 56, sec. 209, in giving pedestrians the right of way at street crossings, excepts from the operation of the statute crossings where the traffic is controlled by traffic officers, but does not refer to lights. And while it may be that the purpose and effect of such lights in Baltimore City are defined by some ordinance or regulation, there was not in this case any proof of such an ordinance or regulation, and, in the absence of such proof, their existence cannot be assumed. Shanfelter v. Mayor City Council ofBaltimore, 80 Md. 483, 487, 31 A. 439.
Moreover, the opinion appears erroneously to assume that there was "scant room" for the driver of the automobile to drive between the posts and the sidewalk, first, because, while the plaintiff said that automobiles were parked "along the south curb there by the bank," it does not appear how far along the street the bank extended, nor whether there were any cars between the posts and the curb. On the other hand, the plaintiff said: "Machines could park there, I think, about three or four deep before they reach the car track. The car track was clear and the space on the south side of the car track was clear as far as I could see up to Charles Street." It is also assumed in the majority opinion that the plaintiff "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 *Page 211 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." But the record fails to show that the plaintiff assumed that vehicles were excluded from "moving along the tracks." She was not in the car tracks when she was struck, but within an extension of the safety zone. But what she did assume was that, whether traffic was routed to the right or left of the zone, it would not be routed over it. The mere fact that traffic was routed to the left of the zone did not change its character as a safety zone, for that is, to the knowledge of every one at all familiar with city streets, constantly done even where there are permanent concrete platforms guarded by pylons, but heretofore it has not been supposed that routing traffic to the left of a safety zone changed its character.
So that eventually the case comes to this: That defendant's automobile in broad daylight collided with plaintiff while she was standing still in a pedestrian crossing within the extended lines of a safety zone and about two feet from one of its posts, and at a point where persons desiring to board street cars which stopped at that point might naturally be; the collision occurred when the car was being driven at a speed of "fifteen or eighteen miles an hour" or "ten or fifteen miles an hour" (for the statement in the opinion that the driver had "just started" did not mean that he had just started from that intersection, but had "just started" at Charles Street, a block away), and it is consistent with the evidence that he could have driven on either side of the zone without striking the plaintiff.
For the reasons stated, and without further laboring them, I find myself unable to accept the view of the strong and able judge who wrote the majority opinion that such conduct is consistent with due care. It is a melancholy and notorious fact that, because of the criminal recklessness and callous indifference of many drivers of motor *Page 212 vehicles, use of the public highways of the state is a hazardous adventure which may bring death or disaster to the most careful and the most prudent. To hold that the driver of such a vehicle may operate it over crowded city streets in blind disregard of conditions which are almost universal, appears to me to confer an immunity from responsibility for negligence which sanctions rather than condemns conduct which makes the public highways so unsafe.
URNER, J., also dissents.