Brown v. Patterson

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment obtained by George W. Patterson against George W. Brown, appellant, for injuries alleged to have been sustained by Patterson, by being struck by the automobile of Brown, at or near the corner of ¡Myrtle Avenue and Harlem Avenue in the City of Baltimore. After the judgment was obtained, Mr. Patterson died and bis widow, Elizabeth R, Patterson, who lias been appointed administratrix, suggested his death and appeared in this Court, as party plaintiff, appellee. The only hill of exceptions in the record which clearly presents the rulings of the court is that in reference to the two prayers offered l>y the defendant — the first that, under the pleadings, there was no evidence legally sufficient to entitle the plaintiff to recover, and the second that there was no evidence of any negligence on the part of the defendant directly contributing to the accident, each of them concluding with a direction for a verdict in favor of the defendant.

Whether or not the defendant intended to press the exception io the granting of the plaintiff’s prayers, and the trial judge intended to certify to his rulings on them by that hill of exceptions, is not clear to us, and did not seem to- be to the appellee. While we have in many cases pointed out that there cannot be embraced in one bill of exceptions rulings on various questions, we have said that rulings on the prayers may be regarded as a single act, and may be embraced in one exception. So we have no difficulty about including the rulings on the prayers in one bill of exceptions, but as to whether it was intended to have us review the action of the ²⁹⁸ court in granting the plaintiff’s prayers, we are in some- doubt owing to the way the bill of exceptions was prepared, but we will, as brieñy as we can, refer to them. Passing for the moment the prayers of the defendant as to the legal sufficiency of the evidence, there can be no- question about the plaintiff’s first prayer.

It is very similar to the plaintiff’s first prayer in Phila., W. and B. R. R. Co. v. Hogeland, 66 Md. 162 , where Judge Alvey said in reference to those granted, which included the first: “Indeed, all the instructions given, on the prayers of the plaintiff are- but plain, legal propositions that admit of no controversy in this Court, where they have been repeatedly sanctioned.” That was over thirty-five years ago, and a similar prayer has been granted and approved over and over again in negligence eases, although, of course, there may he circumstances in a case making such a prayer too general, or for other reasons objectionable. See, for illustration, Chiswell v. Nichols, 137 Md. 291, 307 ; United Rwys. Elec. Co. v. Crain, 123 Md. 332, 349 .

Plaintiff’s second prayer is the usual damage prayer in such cases, and is similar to the sixth in Hogeland’s Case. His fifth is the familiar prayer in use in reference to the burden of proof as to- contributory negligence, and is substantially the same as the fifth prayer in Hogeland’s Case. See also, Balto. & O. R. R. Co. v. Stumpf, 97 Md. 78, 90 . The plaintiff’s sixth prayer instructed the jury as to the duty of drivers of vehicles ’to keep to- the right of the center of the highway at the intersection of public highways.

If any criticism of that prayer could be made, it might be said that it was not as full as it might have been, but it was to the point, and a very important point in this case, and the defendant’s sixth prayer, which is in the record, apparently put there by the appellant, who had control of the record, although not printed in the bill of exceptions, instructed the jury that the regulations in section 163 of chapter 85 of the Acts-of 1918 (our law on the subject) “do not absolve persons ²⁹⁹ or pedestrians from the duty of using reasonable care for their own safety and protection.” Although Harlem Avenue does not cross .Myrtle Avenue, it is an intersecting highway within the meaning of this statute. Buckey v. White, 337 Md. 124, 129 . in passing on the question of the legal sufficiency of evidence to take a case to the jury, in Chiswell v. Nichols , on page 303 of 137 Md., that section of article 56 of the Code is specially referred to, and in Buckey v. White, 137 Md. 124 , it was regarded as evidence of negligence to violate the regulations in that section. The plaintiffs seventh prayer instructed the jury that, under the laws of this state, pedestrians have the rigid, of way over motor vehicles at street crossings at the intersection of streets in the towns and cities of the State. As shown above, the defendant’s sixth prayer, which was granted, properly guarded that prayer, if there ivas any danger of its being misleading.

It will thus be seen that we do not find any error in the plaintiffs prayers which were granted, if the defendant’s first and second were properly rejected, which we will now consider. This case is an unusual one, as the appellant denies that his automobile snick IIr. Patterson, and claims that the latter fell without being struck, while there is considerable evidence as to his injuries, which as alleged were the result of the automobile striking him and knocking him down. We are not called upon to determine which of the contentions is right, hut only as to the legal sufficiency of the evidence to take the case to the jury.

Although conflicting, there is, in our opinion, ample evidence tending to sustain plaintiffs side of the controversy, both as to the negligence -of the defendant and the alleged contributory negligence of the plaintiff. Mr. Patterson testified that he came out of the store or office of his employer, William IT. Wilhelm, which was on Myrtle Avenue, a few doors from Harlem, walked towards the southwest corner of Myrtle and Harlem Avenues, and started to go across Harlem Avenue, intending to go to the shop of his ³⁰⁰ employer, on Shields Alley, which connects with Hoffman Street. That required him to cross Myrtle Avenue at some point and although, when he was called to the blackboard to point out the place where he was- struck, he designated a point on Myrtle Avenue not far from Wilhelm’s office, he stated several times that he was struck at the corner of Myrtle and Harlem Avenues.

There is some confusion in the record as to the description of the streets and corners, and the plaintiff was evidently confused when he undertook to point out, on the blackboard in use in the court room, the point where he was struck. That is not an unusual experience with witnesses when called upon to- designate upon a plat or blackboard some point spoken of, and as the trial was nearly two years after the accident and in the meantime the plaintiff, who was then in his seventy-third year, had become a very different man physically from what lie was before the accident, as testified to by his physician and others, some confusion might well be expected. But that is not very material, as the defendant himself and his companion in the automobile, Rev. John A. Holmes, both said the plaintiff was crossing Harlem Avenue when what occurred did occur — they claiming that the car did not strike him, but that he had fallen from some other cause. The plaintiff swore that he was about two steps from the curb when “Brown came along with his machine and struck me in the hip' and knocked me down.” He said the car ran over his ankles and hip and his feet and ankles swelled up to twice their size.

Dr. Williams, of Elkridge, where Patterson lived, testified that he was called in to examine him on the 8th day of November, 1919, which was the day of the accident, and found him badly bruised: that his right hip joint was injured, bruised, his left ankle joint, his right instep and both legs from the knees to the ankles were