uncontradicted evidence in the case the driver | present. This was clearly indicated in Unitof the ambulance was guilty of negligence ed Railways v. Durham, 117 Md. 197, 83 Atl. directly contributing to the happening of the 154, where it was said that: accident, and that the verdict of the jury "If the plaintiff was guilty of contributory must be for the defendant. These two pray-negligence, the question of negligence vel non ers were granted by the court, whereupon the defendant withdrew its second prayer. The ruling of the trial court upon these prayers constitutes the sole exception in the record. Several questions were raised by counsel at the argument, though it will be sufficient for the disposition of this case to consider only two of them. [1] The plaintiff urges as an act of negligence on the part of the defendant a failure to observe the ordinance then in force designed to regulate traffic in the streets of Baltimore city, and which gave a right of way at street intersections to north and south bound travel over that moving east and west. This provision, like all provisions of municipal regulation, must be given a reasonable construction. To extend it as far as the plaintiff now asks would be to place a prohibition upon all east and west bound traffic, a condition which cannot be supposed to have been intended by the framers of the ordinance, and it entirely ignored the further provision in the same ordinance that: "Nothing contained herein or omitted herefrom shall be construed or held to relieve any person using or traveling, or being upon any street for any purpose whatever, from exercising all reasonable care to avoid or prevent injury, through collisions with all other persons and vehicles." It is conceded that the speed of the ambulance was greater than that permitted by the ordinance, and that the car was moving slowly. It is also established by the evidence that the chauffeur of the ambulance saw the car when distant 100 to 125 feet from it, and had it in such full view that both ends of the car were visible, and that the car was proceeding slowly westwardly, within the speed limits prescribed by the ordinance. The plaintiff attempted to show by the chauffeur that the motorman of the car was looking in a different direction, and there fore did not see the approaching machine. This last, however, was a mental deduction of the witness, rather than a statement of fact, and while the prayers which were granted necessarily concede the truth of the evidence of the plaintiff, that is an entirely different proposition from conceding inferences which may be drawn by a witness from matters which were observed by him. Numerous cases decided by this court are referred to by the plaintiff in support of his contention of negligence on the part of the employé of the defendant, such as United Railways v. Kolken, 114 Md. 160, 78 Atl. 383, Consolidated Ry. Co. v. Armstrong, 92 Md. 554, 48 Atl. 1047, and Cooke v. Balto. Traction Co., 80 Md. 551, 31 Atl. 327, but a close examination of each of those cases will dis on the part of the defendant becomes immaterial, for, if there was no negligence on its part, there can be no recovery, and if there was, the same result would follow, because of the plaintiff's contributory negligence." It was there said that the case should have been withdrawn from the consideration of the jury. [2] The plaintiff in his argument endeavors to introduce the doctrine of the last clear chance, but that is not applicable in a state of facts such as those presented by this record, for, as was said in McNab v. United Rys., 94 Md. 719, 51 Atl. 421, following the case of R. R. v. Neubeur, 62 Md. 401, that rule "is only applicable when defendant's negligence is the last negligent act, and not when plaintiff's contributory negligence is the final negligent act," and this same rule was applied in the case of Westerman v. United Rys., 127 Md. 225, 96 Atl. 355. In the present case the negligent acts which directly caused the collision and injury to the plaintiff's ambulance were those of either the plaintiff or the plaintiff's employé; such. for example, as driving the ambulance, at the time when the streets were slippery, without chains upon the wheels, at a speed which, whether in excess of that permitted by ordinance or not, was such as to constitute a menace to persons upon or crossing the streets, and making no attempt to slacken or check the speed of the ambulance after the car had come into full view, until a point was reached where the inevitable momentum of the machine made a collision practically certain. In states other than Maryland the courts have been called upon to rule upon questions very similar to that now involved. In the case of Ray v. Brannan, 196 Ala. 113, 72 South. 16, decided in 1916, the court had under consideration an ordinance very similar to that which was designed to regulate traffic in the city of Baltimore, and in force when this accident occurred, and the Alabama Supreme Court, in an exceptionally strong opinion, uses the following language: "The conditions of traffic on intersecting streets may reasonably require that such (referring to the ordinance) priority be given to one street over another. But the mere fact that one vehicle has the 'right of way' over others crossing its path does not release the vehicle thus favored from the duty of exercising due care not to injure the others at the place of crossing. On the contrary, the duty of due care to avoid collision remains reciprocal, and the driver of each vehicle may, within reasonable limits, rely upon the discharge of this duty by the other, observance of those municipal regulations with including, among other things, the reasonable respect to speed and position, which are designed not only to facilitate traffic and travel, but also to make it safe for the public as far as it is humanly possible. But this right to expect the observance of specific legal duties by the specific duties imposed by law upon himself; | Mayor and City Council of Baltimore. Judgand his failure to do so, if the proximate cause ment for plaintiff, and defendants appeal. of his injury, would, as a matter of law, defeat Affirmed. his right of recovery." In Pilgrim v. Brown, 168 Iowa, 177, 150 N. W. 1, which was in regard to the collision between two automobiles, and where suit had been brought for the recovery of the damage done to one of the machines, the Iowa court was construing the provisions of an ordinance of the town of Grinnell designed to regulate the speed of such vehicles, and said: "The ordinance does not, and reasonably could not, charge a driver who is observing the laws of the road to discover at his peril the approach of one who is violating that law, and yields him the right of way." Under the facts presented by the record in this case, and the rules of law applicable thereto, no error can be imputed to the trial court for the rulings made by it, and the Judgment appealed from will be affirmed. Judgment affirmed, with costs to the appel lee. On prayer for a directed verdict, the court must assume the truth of all the evidence tending to sustain the claim or defense against which the prayer is directed. 3. MUNICIPAL CORPORATIONS TIVE STREETS-LIABILITY. 755-DEFEC If a city negligently fails to keep streets in reasonably safe condition for public travel it is liable to persons acting without negligence who are injured thereby. 4. MUNICIPAL CORPORATIONS ~791(2) — DEFECTIVE STREETS-NEGLIGENCE. Where a depression in pavement two to four inches deep and five feet in diameter existed for several months, at a point established by ordinance for stopping cars, negligence of the city officials in failing to keep the street in a reasonably safe condition is shown. 5. MUNICIPAL CORPORATIONS 806(2) STREETS-RIGHTS OF PEDESTRIANS. Since pedestrians have rights in the streets equal to vehicles, they may assume that they will not be subjected to the nuisance of a depression in the street, though pedestrians cannot shut their eyes to obvious defects. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, STOCKBRIDGE, and CONSTABLE, JJ. Edw. J. Colgan, Jr., Asst. City Sol., of Baltimore (S. S. Field, City Sol., of Baltimore, on the brief), for appellants. William H. Lawrence, of Baltimore, for appellee. CONSTABLE, J. The appellee recovered a judgment against the appellant as a result of personal injuries suffered by her through the alleged negligence of the appellant in permitting one of its thoroughfares to be, and remain for a long time, in an unsafe and dangerous condition. At the trial below, the appellant offered three prayers, each seeking to withdraw the case from the consideration of the jury; two upon the ground that there was no legally sufficient evidence to entitle the plaintiff to recover, and one for the reason that the plaintiff was guilty of contributory negligence. It is only upon the theory that the court committed error in refusing one or all of these prayers that this appeal is prosecuted. [1, 2] This court and others have so often and so consistently declared the rule of law as to when cases should be withdrawn from the consideration of the jury for want of legal evidence, that it is only necessary to repeat the rule: and that is, if there be any evidence from which a rational conclusion may be drawn as opposed to the theory of the prayer, the weight and value of such evidence should be left for the consideration of the jury, and, before such a prayer can be granted, the court must assume the truth of all the evidence before the jury, tending to sustain the claim or defense, as the case may be, and of all inferences of fact fairly deducible from it. Jones v. Jones, 45 Md. 144; Balto. Elevator Co. v. Neal, 65 Md. 459, 5 Atl. 338; Moyer v. Justis, 112 Md. 220, 76 Atl. 496; Balto. v. Leonard, 129 Md. 621, 99 Atl. 621. [3] The duty of a municipality to keep its public streets and highways in a reasonably safe and proper condition for public travel is too well settled in this state, by numerous and recent decisions, to admit of any doubt; and if the municipality negligently fails to do so, and persons acting without negligence upon their part are injured, because of such 6. MUNICIPAL CORPORATIONS 821(25)-DEFECTIVE STREETS negligence of the city, the municipality is CONTRIBUTORY NEGLIGENCE QUESTIONS FOR JURY. liable in damages. Balto. v. Marriott, 9 Md. Evidence held to present jury question as to 160, 66 Am. Dec. 326; Hagerstown v. Klotz, pedestrian's negligence defeating recovery for in-93 Md. 437, 49 Atl. 836, 54 L. R. A. 940, 86 juries caused by falling in depression in street at point where she was about to board a car. Am. St. Rep. 437; Keen v. Havre de Grace, 93 Md. 34, 48 Atl. 444; Magaha v. Hagerstown, 95 Md. 70, 91 Atl. 832, 93 Am. St. Rep. 317; Annapolis v. Stallings, 125 Md. 346, 93 Atl. 974; Delmar v. Venables, 125 Md. 476, Action by Elmira Bassett against the 94 Atl. 89; Gutowski v. Balto., 127 Md. 502, Appeal from Court of Common Pleas of Baltimore City; Morris A. Soper, Judge. "To be officially reported." 96 Atl. 630; Burke v. Balto., 127 Md. 560, 96 Atl. 693; Hagerstown v. Crowl, 128 Md. 556, 97 Atl. 544; Biggs v. Balto., 129 Md. 684, 99 Atl. 860. [5] We also are of the opinion that the question vel non of contributory negligence was one to be presented to the jury; for, since pedestrians have rights in the streets equal to vehicles, they are justified in asat-suming that they will not be subjected to the dangers of a nuisance, such as the testimony showed the city permitted to exist at a point where those about to take a car had to come into contact with it; but this presumption, of course, does not authorize one to shut his eyes to open and obvious dangers, and pay no attention, whatever, to the condition of the highway in which defects may, although Balto. Trust Co. v. they should not, exist. Balto. City, 97 Md. 647, 55 Atl. 388. [6] We think the testimony bearing upon this point is such as to cause reasonable men to differ, and therefore, under the rule, should have been submitted. Finding no error in the rulings of the court, we will affirm the judgment. Judgment affirmed, with costs to the appel (132 Md. 397) SHAWMUT MINING CO. v. PADGETT. (No. 13.) (Court of Appeals of Maryland. April 2, 1918.) 1. EVIDENCE 471(2) - CONCLUSIONS-DESIRE OF THIRD PERSON. The testimony tends to show that the plaintiff, a woman of 75 years of age, tempted to board a street car at the southwest corner of North and Moreland avenues in Baltimore City, during the afternoon of March 5, 1917. She had been walking up Moreland avenue, and at the corner of that avenue and North avenue left the curb of It had been the pavement and hailed a car. raining the morning of, and the night before, the day of the accident. From the curb to the car line is a distance of 15 or 20 feet. Helms, 84 Md. 515, 36 Atl. 119, 36 L. R. A. And in a direct line from the corner to the 215; Magaha v. Hagerstown, 95 Md. 62, 51 entrance of a car standing to take on passen-Atl. 832, 93 Am. St. Rep. 317; Knight v. gers, and about midway between the curb and the car, was a hole in the concrete or macadam street bed, described by the witnesses as of a bowl shape, and variously described by them as from 3 to 5 feet in diameter and hollowed out, at its greatest depth in the center from 2 to 4 inches. Several of the witnesses, in locating its position, testified that, in making the car, a person ei-lee. ther had to jump over it or walk around it. And it was further testified that the hole had been there for at least a year. The plaintiff testified that after she left the curb, and while looking for automobiles both ways, she stepped into the hole and fell, breaking one She testified of her arms in three places. In action against alleged partnership, where that she was not familiar with the point in question before the accident, and knew noth-one defendant denied relationship, testimony of the other defendant that there was no written ing of the hole in her path to the car until just as she was about to place her foot in it, and then she could not hold herself back; that, because of the rain, the earth in it was muddy and looked perfectly safe, like the rest of the street, and she did not know there was a hole there until she was falling. [4] The chief contention of the appellant seems to be based upon the theory that the court below should not have allowed the case to go to the jury upon what it claims to have been no evidence of negligence whatsoever, when the only proof of such is based upon "the existence of such an insignificant defect." We cannot agree with this argument. If the authorities, charged with the duty of using reasonable care in keeping the streets and highways in safe condition for the traveling public, likewise using due care, choose to permit a defect, such as described by the testimony in this case, to continue for months, then there is strong proof that they have negligently failed to perform their legal duties. The fact that an ordinance requires all street cars to stop on the near side of a cross street for receiving and discharging passengers should have called to the attention of the authorities that holes, located as this one, were especial menaces to those compelled to avail themselves of the cars. partnership agreement, and that the other "did BILITY. 49-EVIDENCE-ADMISSI General indefinite statement that it was the common talk in the city that one defendant was the partner of the other, not shown to have been brought to defendant's knowledge, was properly excluded. 3. APPEAL AND ERROR 1048(6)—HARMLESS ERROR-CROSS-EXAMINATION-SCOPE. In action against alleged partnership, where one partner, testifying as to financial condition of the firm, was asked whether he took the firm money and left town and was afraid to return, and the court stated that he need not answer as to his private affairs not connected with the matter in controversy, and the witness then answered that he took some money and was not afraid to return, and had returned to town, there was no reversible error. 4. APPEAL AND ERROR 1048(6)—HARMLESS ERROR-CROSS-EXAMINATION OF WITNESSES. Where witness was permitted without objection to give testimony more harmful as affecting his credibility than that objected to, there was no reversible error in admitting the testimony objected to. 5. APPEAL AND ERROR 1050(1)-HARMLESS ERROR-EVIDENCE. Where witness had previously testified that a third person was not his attorney, admission of letter denying that such person was his attorney was harmless. 6. WITNESSES 198(1)-PRIVILEGE-ATTOR- This forms the first exception. NEY AND CLIENT. 219(3)—PRIVILEGE-ATTOR The privilege of communications to an attorney is for the protection of the client, and he may waive it expressly or by implication; and, if he discloses as much as he pleases, he cannot withhold the remainder. In this ruling of the court we discover no error. The court's ruling on the second exception was also proper. [2] The third exception was to Llewellyn's statement that it was the common talk of Baltimore that Bob Padgett was his partner. This general, indefinite statement, not shown to have been brought to the knowledge of the defendant, was properly excluded. The fourth exception is to the admissibility of a ledger of William J. Llewellyn & Co., offered in evidence by the defendant. This Appeal from Baltimore City Court; Chas. evidence may not have been material, but W. Heuisler, Judge. Action by the Shawmut Mining Company against Robert J. Padgett and others. From the judgment for defendant Padgett, plaintiff appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, PATTISON, J. This is an appeal from a Judgment for the defendant, Robert J. Padgett, in an action brought by the appellant, the Shawmut Mining Company, against William J. Llewellyn and Robert J. Padgett, copartners trading as William J. Llewellyn & Co. The suit or action was brought upon the common money counts; but an account was filed with the declaration, showing that the claim sued on was for bricks sold by the plaintiff to William J. Llewellyn & Co. in its admission we find no reversible error. The witness Llewellyn was, at the time he testified, a manufacturer's agent, with his offices in the city of New York. He had the agency for the sale of the goods of the St. Mary's Sewer Pipe Company and the ShawThese agencies he mut Mining Company. had held since he left Baltimore, in 1914. In his examination in chief he testified, as we have said, to the existence of an oral copartnership agreement between him and Robert J. Padgett, by which the firm of W. J. Llewellyn & Co., consisting of Robert J. Padgett and himself, was created. He further testified that the affairs of the firm were managed by the witness, and the profits were equally divided between him and Padgett; that Padgett's share of the profits was paid to him in cash. The firm was engaged in the sale of bricks, cement, etc., and was agent for the Shawmut Mining Company, and for the sale of the Alpha Portland Cement. The copartnership agreement was made, as he stated, in May, 1918, and shipment of goods to the firm started September, 1909, and ceased September, 1911. Thereafter, in January, 1912, a corporation was formed, known The defendant Padgett filed three pleas: as the Contractors' Supply Company, with (1) That he never was indebted as alleged; W. J. Llewellyn as president and general (2) that he did not promise as alleged; (3) manager. The books of the company did not that he was not copartner of William J. show Padgett's connection with the firm, or Llewellyn, trading as William J. Llewellyn that he shared in the profits of the company. The This, as witness said, was in accord with & Co., as alleged in the declaration. defendant William J. Llewellyn declined to the wishes of Padgett. Upon cross-examinaplead, and later, in open court, confessed tion Llewellyn testified that Padgett would judgment in favor of the plaintiff, upon the never receive a check for his profits. always took to him the cash. There was no claim filed. regular time at which these settlements were made. "The account would be on a piece of paper, so much cement sold to this party, so much brick sold to this party; that Padgett would look at the account, and, after receiving the money, would tear it up; no receipts from Padgett that he took and made no entries on the firm's books." The money for goods sold by the firm was collected by Llewellyn, and the deposits in the bank were made subject to withdrawal by him only. The witness was then asked, "Can you explain how you were so much behind?" He replied that the mon In the course of the trial there were 35 exceptions taken to the rulings of the court upon the evidence, and one upon the prayers. [1] William J. Llewellyn, being produced by the plaintiff, testified as to the copartnership agreement. In the course of his testimony he was asked, "Was there any writing between you?" and he answered, "None whatever; Padgett did not want any writing." The defendant asked the court to strike out this answer, unless "the witness means to say that Mr. Padgett said so." There was no explanation given as to his meaning, and the answer was stricken out. He ey was used to further the political inter-proceeding with the examination, asked est of Robert J. Padgett; that he himself "This $1,300.00 you took"-here the witness gave to Padgett, in addition to his share interrupted him saying, "Was the stockof the profits, large sums of money, for I will finish that for you-Was the stock of such purposes. The witness was then asked, the Contractors' Supply Company which I “When did you leave Baltimore?" "I went was entitled to." Question: "Did you tell in 1913. * I have been living in anybody you were going to take it?" Answer: New York now a little over two years." "I resigned on that date." Question: "Then "When did you leave for good?" "I left in you took the money and went off with it?" 1914, in the month of March." Question: Answer: "I took it and got the money, cash." "Did you leave Baltimore in December, "Well now, Mr. Llewellyn, isn't it a fact, for 1913?" Answer: "Why, sure. I left sev- a long time afterward you were afraid to eral times. I left in December, 1913, with a come back to Baltimore for fear you would $4,000 check in my pocket, certified to the be arrested?" "No; I was here all the order of the St. Mary's Sewer Pipe Company, time." He was back in the office the followto pay a debt for which I was obligated." ing Wednesday. He did not fear arrest. Question: "Did you leave rather suddenly?" The witness was then asked, “Isn't it a Answer: "No." "You did not say good- fact, with regard to the $1,300 check that bye to any of your friends, did you?" "I you got that check signed in Baltimore by told William Corey." Question: "Anybody Mr. Corey, as secretary of the company, repelse?" "I told my wife." Question: "You resenting to him that it was to be used for got another check cashed just before you pay roll, and that you then, instead of using left?" To this question the plaintiff's coun- it for pay roll, used it for your own personal sel objected, saying, "What has that to do benefit?" with the case?" As the record discloses, the witness voluntarily said: "It has to do with the Llewellyn Case, that is, the Contractors' Supply Company. I will acknowledge tak ing money there. I will acknowledge that." Then followed a discussion as to the question asked, participated in by the court, as well as the counsel for the respective parties. At its conclusion the court said, addressing the defendant's counsel, "If any of your questions broach upon his private affairs not connected with this matter, he has the right to refuse to answer." The counsel for the defendant, dropping the question to which objection had been made, asked the witness, "What do you mean by that acknowledgment?" This question was objected to by the plaintiff's counsel, and, the objections being overruled, the fifth exception was taken thereto. It will be observed that this question was directed to the answer of the witness, voluntarily made, in which he said: "I will acknowledge taking money there. I will acknowledge that." The witness answered the question objected to, saying that, "On the same day that I had this $4,000 check certified I also drew the pay roll of the Contractors' Supply Company, and also drew a check to my order, W. J. Llewellyn, for $1,300." This answer, given in explanation of the earlier answer of the witness, which was uncertain in its meaning, was not objected to, and the witness was permitted, without objections, to state further that he put the money in his pocket and went to his home, and that night he went to New York, from which place he returned to Baltimore on the 20th of December, and, after remaining in Baltimore for about two days, again went to New York, and in the latter part of the year 1914 ceased to make his This question was objected to, and the court thereupon struck from the question the words, "And that you then, instead of using it for the pay roll, used it for your own personal benefit"; and the question, as amended, was propounded to the witness. The plaintiff again objected, and the court overruled his objection. This forms the sixth exception. He replied, in substance, saying there were two or three checks, drawn in blank, signed by William H. Corey, an officer of the corporation, authorized to sign checks. He could not recall whether he had demanded his check of $1,300 or not; that he asked Miss Thompson, an employé in the office, to fill in a check to the St. Mary's Sewer Pipe Company, but she refused, saying, "They (meaning others interested in the company) did not want her to." He then filled in the check himself, for the sum of $4,000 to St. Mary's Sewer Pipe Company, and also filled in another to himself, W. J. Llewellyn, for $1,300; that the representations made to Corey to have him sign the checks were those ordinarily made; that is, that he wanted so many checks. He was not told for what he wanted them. [3] We have gone very fully into the evidence leading up to the fifth and sixth exceptions, in order that it may be seen whether the answers to the questions objected to, when considered in connection with the evidence admitted without objections, injuriously affected the plaintiff, even though it should be held that the defendant pursued this line of questioning beyond what he should have done. In view of the evidence preceding the question involved in the fifth exception, and the doubtful character of the answer of the witness, voluntarily given, to which the question was directed to ascertain its meaning, and the statement of the court that the wit |