Chiswell v. Nichols

Pattison, J., delivered the opinion of the court. Eugenia Ohiswell, the appellant, sued Charles E. Nichols, the appellee, to recover damages for personal injury sustained by her in an automobile collision caused by the alleged neg ²⁹⁴ ligence of the appellee. The judgiment being for .the appellee, she has appealed to this Court. At the conclusion of the evidence taken in the trial of the case below, a number of prayers were offered by the plaintiff', as well as by the defendant, but only the defendant’s second and third prayers, directing! a verdict for him, were granted; one because of the contributory negligence of the plaintiff, and the other for a want of legally sufficient evidence entitling the plaintiff to recover.

The ruling of the court upon the prayers is the only exception in the record. The record discloses that the plaintiff, a resident of Licks-ville, Frederick County, Maryland, upon the invitation of Stanley J. Wood, a merchant of Licksville, on the 4th day of December, 1919, rode with him in an automobile, owned and driven by him, to the town- of Frederick. On their return home, in the afternoon of that day, after passing through Buckeystown, and while proceeding southward on the concrete road to Licksville, they collided with the defendant’s car at or near the intersection of that road by the Adamstown road. The plaintiff at the time of the accident was seated on the front seat of the automobile, a Ford touring cax*, hr the light of the driver, Mr. Wood.

There was in the car a quantity of oysters and merchandise, weighing four or five hundred pounds. The defendant, with Mrs. Eugene Wachter, had, on the day of the accident, ridden in a Page automobile, owned and driven by the defendant, from their homes- in Buckeystown to Adamstown, and at the time of the accident were returning from Adamstown to Buckeystown. The Adamstown road, over which they traveled in returning to Buckeystown, approached the Buckeystown road from the west, and was from one and onedialf feet to three feet'lower than the Buckeystown road. The ascent from the former to the latter started a short distance west of the Buckeystown road.

Immediately before the accident the plaintiff was upon the Buckeystown road moving south thereon towai’ds its inter ²⁹⁵ section with tbe Adamstown road, while the defendant was on the Adamstown road going east to said point of intersection, and the collision occurred at or near said intersection. The evidence discloses that there was nothing to obstruct the view of either, at any point within a quarter to a half mile of the intersection, from seeing the other as he or she approached that point, more than a post or rail fence upon the side of thei road. It is further shown from the evidence that upon the east side of the Buckeystown road, opposite the center of the Adamstown road, was a milk station or stand. Stanley J. Wood, the owner and driver of the automobile in which the plaintiff was riding, in giving an account of the accident, said it was “about half past three in the afternoon,” the sun was shining “in my eyes, shone on the windshield,. and I could not see anything on the side to amount to anything.

I was looking straight ahead; on thei side the glare of the windshield kept mo from seeing anything coming from that side. I was just going along, didn’t know I had come to that road (Adamstown road). * * * When I came to my senses, I was standing up on the pike.” “When did you see the Nichols car with reference to the accident?” Ana “I never seen it until the very moment it struck me. When the collision came I just seen something black come before me and everything was dull, I didn’t know nothing.” The witness testified that he frequently travelled the road from Licks-ville to Buckeystown road, and knew about where it came into the Buckeystown road. He further testified that, at the ame of the accident, he was going between twenty and twenty-five miles an hour.

He had no speedometer, but was not going over twenty-five miles an hour. The Nichols ear, he said, struck his car between the front and rear1 doors and “drove it across the pike over against the milk stand and smashed it down.” Upon cross-examination, he testified there was nothing between the Buckeystown road and the Adamstown road to prevent him from seeing anyone travel-ling on the last named road, but on the day of the accident ²⁹⁶ he could not see because the sun was shining in his eyes. He said, “it was difficult driving; it did not occur to me I was there at that road.” The plaintiff testified that, at the time of the1 accident, the oar in which she was driving was going between twenty and twenty-five miles an hour. When asked to tell the jury what, if anything, she knew about the accident, she said: “We passed Mr. De Garmendia’s car directly outside of Buckeystown, and we seemed to be riding about four or five minutes, when all at once I came to on the pike there, and I couldn’t imagine what had happened; we were going at a good steady rate.” “Did you see the Nichols car collide with the Wood car?” Ans. “No,” “Tell the jury wha.t you were doing as you were going along; the road.” Ans. “As we passed Mr. De Garmendia’s car, Mr. Wood said, ‘that is Mr. D'e Garmendia.

I know him by his hat.’ I said, ‘Yes, I know him by his number’; and we drove along then quietly, nothing more was said.” “Obuld you see the Adamstown road?” Ans, “Yes, sir; I could see it fairly well, but not very well because of the sunlight.” “Was the sun shining on the shield?” Ans. “Yes, sir; seemed to be shining in front of the car there.” She did not see the Nichols car, though there Was no obstruction “along there at the intersection of the road,” more than the post and rail fence. She was seated on the right side of the car, the side from which the Nichols car approached. There were no> curtains upon that side of the car. She knew where the Adamstown road came into the Buckeystown road. 'She had often passed up and down that road.

She was then asked, “Did you look in the direction of the Adamstown road going down?” And she answered: “I had been glancing to the right some.” “You didn’t look particularly at the Adamstown road?” “No. I saw where the road came out by the fence just before we got to the Adamstown road.” She did not see Mr. Nichols’ car at any time before the accident. Mr. Wood’s car, at the time of the accident was in the middle of the road. She was asked: “Were you giving especial attention to the Adamstown road ²⁹⁷ to see if anything was coming down there?” Ana. “No, I was looking casually about now and then as best I could.” “The sun was in your eyes ?” Ans, “Yes, sir.” Oarlos De Garnaendia, a farmer near Tuscarora, Maryland, testified that- he was returning home from, Frederick, on December 4th, 1919, and when he had reached a point just beyond Buckeystown, about three o’clock in the afternoon, Mr. Wood passed him. The witness’ wife was with him in the car, sitting to his right on the front, seat, and Glenn Washington, a colored man, an employe© of witness, was sitting on the rear seat.

In speaking of the Adamstown road, he said “it came into the Buckeystown road almost at right angles.” The acute angle, however, is on the south side of the Adamstown road. In answer to a question asked by the court, the witness said, “there is a telephone line and an electric line on both of those roads.” He further stated that, after Wood passed him down the pike, he was behind him all the way to the scene of the accident, and at the time of the collision was about one hundred yards from him. He was then asked to tell what he saw of the collision. His answer was: “As Wood approached the Adamstown road, and when almost there, a car came out and had taken this direction coming on to the pike, cut the corner, and almost instantly after its appearance on the pike crashed into the Wood car, lifted it, earned the car forward diagonally two or three car lengths, and the Wood car came to rest right against the milk stand right against the fence, the milk stand being almost directly opposite the end • of the Adamstown road.

They struck and while in contact, went forward diagonally and stopped at the milk stand.” Wood at the time of the accident was in the middle of the road, and his ear (Wood’s) was struck “from the middle of the car forward.” When the collision occurred, the witness got out of his oar and went over to the plaintiff, who was lying on the ground unconscious, and Wood at the time was crying, ‘Oh, it was not my fault.’ He then saw Nichols, and said to him “It is you, isn’t it awful,” and ho (Nichols) said, “My God, I never ²⁹⁸ saw him until I struck him. I j ammed my brakes, but it was too late.” The witness did not hear any horn blown by Nichols, but stated that because of the distance* he was away from him he probably could not have heard him. Nor could he say how fast Nichols was going at the time of the collision. “It was simply an appearance and a crash.” Upon cross-examination, he testified that had he looked, he could have seen across the Adamstown road. The Wood car, he thought, was not exceeding twenty-five miles an hour at the time of the accident.

Mrs. De Garmendia, who, as we have said, was with her husband, testified that Mr. Wood was going at the time of the accident from twenty to* twenty-five miles an hour, and this was his speed from the time he passed them until the time of the collision. 'She was asked to state to the jury, what she saw of the accident. She answered saying: “As Mr. Wood approached the point where the Adamstown road comes .into the Buckeystown road, I saw a car coming along the Adamstown road at what I considered a very excessive speed for anyone going to turn, and I kept my eyes right on it, and all at once I saw him swing the corner and strike Mr. Wood, a, terrible explosion, and then the two cars went forward diagonally and stopped at the milk stand. I didn’t pay much attention to Mr. Nichols’ oar but it was still pointed at the Wood car.” “How fast would you say Mu*. Nichols’ car was travelling when he came out there on the pike?” Ans. “I should judge at least twenty miles an hour, which is fast for anyone going to* make a turn.

It would be a moderate speed for anyone on a straight pike, but for anyone approaching a turn, it seems a dangerous speed. H!e swung right around and just struck rather a little obliquely, but all I saw was the broad side of the car. * * * The road is wide and he came right around close to the fence, as near as he could to the fence, as he was still on the concrete, just followed the concrete around.” She* too heard Wood stay that it was not his fault. ITpon crossnexamination, she stated that she saw Nichols car corning a,t a point half a square from the intersection of ²⁹⁹ the road. She did not notice that ho reduced his speed, “he seemed to be coming along as if he was not approaching a turn at all.” , In answer to a question of the court, she said that her husband gave “his entire attention to the road,” while she “was glancing about.” The sun, she said, was “very trying,” and when so glancing about, she shaded' her eyes with her hand.

It was in this manner that she saw Nichols on the Adamstown road. Glenn Washington, the man riding on the rear seat in the Wood car, said Wood, at the time of the accident, was going at about twenty-five miles an hour, and at such time the car in which he, the witness, was riding was about one hundred yards behind him. He was sitting on the right side of the automobile, and saw Mr. Nichols’ oar upon the Adamstown road. When he first saw him, he was three-quarters of a mile from the intersection of the roads, and “wasi coming at a pretty good rate of speed, about twenty miles an hour.” He was then asked“Did you see him when he came out on the Buckeystown road,” and he replied “Just as I took my eye off him, I saw the car raise Wood’s car up.” “Did Mr. Nichols slacken his speed any?1” Ansi. “It didn’t look like it slowed up any.” “How did he come up on the Buckeysitown pike ?” Ans. “I will say he came up on the pike then and kind of made a little sharp turn there.” “What do you moan by a little sharp turn?” Ans. “Didn’t pull out wide like he should have done.” He then described the collision, as heretofore described by Mr. and Mrs. De Garmendia; and he said that he heard the statements made by Wood and Nichols, as stated by De Garmendia.

On cross-examination he was asked, how long he continued to look at Nichols’ car when he saw it on Adamstown road. ITe answered saying, “I seen it clean until he got up there.” “You said in answer to Mr. Newman’s question, you took your eyes off of it, and the next thing you saw was Wood’s car rise up.” Ans. “I don’t think I said that. No', sir.” “What was it you said ?” Ans. “I said, when I looked again. ³⁰⁰ I saw Mr. Wood’s car raised up1 and carried across the road. I kept my eyes on Mr. Wood’s car all the time.” “What do you mean by saying, when you looked again, looked again at what?” Ans. “Wasn’t looking again at nothing; I was looking at the car, that was the only thing I know I was looking at.” . “At the Nichols car?” Ans. “Yes, sir.” “You never stopped looking at it?” Ans. “No, sir; I just kept my eye on the car.” “What did you mean by saying, when you looked again?” Ans. “That is just a saying I have.” Mrs. Eugene Wachter, a witness produced by the defendant, who was in the ear1 with him at the time of the accident, testified that when Mr. Nichols came within about twenty-five feet, of the Buckeystown road, he sounded the horn, “then, just as he made the turn upi on the pike to the east side, I seen those cars, Mr. Wood’s car, which was on the east side of the road, and Mr. De Garmendia on the west, and they were coming just like that, and I thought there was danger, and I screamed, and Mr. Nichols stopped his car and of course Mr. Wood ran into him.

It just seemed as if he just hooked the wheel of Mr. Nichols’ car with the right-hand side of his car, and took it right around with him to the sout-h, and then when the wheel came off of Mr. Wood’s car, that left Mr. Nichols’ car loose, and that kind of bounced back some distance, enough to walk between them, and tbe lady fell out immediately.” Witness got out of the car and went to the assistance of the plaintiff. Mr. Wood and Mr. Nichols and others were there. She heard Mr. Wood say to Mr.