Carroll v. Fisher

Adkins, J., delivered the opinion of the Court. This appeal presents a very narrow and technical question of practice. The declaration was as follows: “D. K. Este Fisher, by Bartlett, Poe & Claggett, his attorneys, sues William L. Carroll. ³³ “For that on or about December 23rd, 1921, the plaintiff was the owner of a Franklin touring car, which at the time complained of was safely and carefully parked on the south side of Park Avenue, between Saratoga and Mulberry Streets, public thoroughfares in the City of Baltimore, and that while his said automobile was parked on Park Avenue as above described a truck owned by the defendant, and operated by him, his servant or agent, in a reckless, negligent and careless manner, ran into and against the side of the plaintiff’s car, badly damaging the same, causing the plaintiff to spend a large sum of money in repairing said car and causing him additional expense and inconvenience by being deprived of the use of said car during the time of its repair. “And the plaintiff further says that the damages so complained of were caused solely by the negligence of the defendant, his servant or representative, and were in no wise directly contributed to by the plaintiff therein. “2. For that on or about the 23rd day of December, 1921, the plaintiff was the owner of a Franklin touring car which on the day aforesaid had been parked on Park Avenue in a careful and prudent manner, when a truck owned by the defendant and in his care or the care of his servant or agent and which had just previously thereto been left standing on Pleasant Street in such a negligent manner that said truck came loose from its position on Pleasant Street and, running backwards down the grade of Pleasant Street, proceeded across Park Avenue, crashing into the side of the plaintiff’s car and severely damaging the same, causing the plaintiff to spend a large sum of money in repairing said car and causing him additional expense and inconvenience by being deprived of the use of said car during the time of its repair. “And the plaintiff further says that the damages so complained of were caused solely by the negligence of the defendant, his servant or representative, and were in no wise directly contributed to by the plaintiff therein, ³⁴ “And the plaintiff claims one thousand dollars ($1,-000.00).” The plaintiff offered no prayers.

The following prayers were granted at the request of the defendant: 1. At the request of the defendant the court instructs the jury that the plaintiff has offered no evidence legally sufficient to entitle him to recover under the first count of the declaration of this case, and, therefore, the verdict of the jury must be for the defendant as to said first count. 6. At the request of the defendant the court instructs the jury that unless they find from the evidence that the defendant, in the management of his truck, failed to use such diligence and care as prudent and discreet persons would