Consolidated Gas, Electric Light & Power Co. v. O'Neill

Shehan, J., delivered the opinion of the Court. This is an appeal from a judgment of the Baltimore City Court in favor of Mildred O’Neill against Consolidated Gas, Electric Light and Power Company of Baltimore, a corporation, and Henry M. Lummis. ' ⁴⁹ The questions here presented for consideration arise on the refusal of the trial court to grant two prayers of the defendants for a directed verdict. The court held that, upon the whole testimony, there was legally sufficient evidence of the defendants' negligence to submit the case to the jury. The agency of Henry M. Lummis for the company is conceded by stipulation.

Henry M. Lummis, while in the employ of his codefendant, was driving an automobile south on Greenmount Avenue, in the City of Baltimore, at a moderate rate of speed. Immediately preceding him was a large automobile, and in front of it there was a taxicab. As this line of traffic approached Twenty-ninth Street, the cab driver undertook to make a left turn and then stopped to permit the car driven by Mrs. O’Neill, the appellee, to pass in front of it, which she did, and proceeded across Twenty-ninth Street, and had reached a point on the north side of that street, near the curb, when the collision between the automobile driven by Lummis, and her car, occurred. Just preceding the accident, Mrs. O’Neill was driving her husband’s automobile and was proceeding northward on the east side of Greenmount Avenue at a reasonable rate of speed.

As she approached the south side of Twenty-ninth Street she observed the cab coming across this street, which started to turn east. She then slackened her speed to permit the cab to proceed in front of her, but the cab stopped, and she proceeded across the street in front of it. The Lummis car came out of the line of traffic and across the avenue, striking her car about midway, and, by the force and effect of this collision, she was severely injured. The defendants (appellants) set up, as their defense, an unavoidable situation alleged to have been created by the sudden turning, and stopping of the cab, thus impeding or stopping the automobile immediately in front of Mr. Lummis, and the failure of the foot brake to operate.

He states that when it became evident that he was in a position of peril, he found it necessary to instantly elect between coming in contact with the auto ⁵⁰ mobile immediately in front of him or turning quickly to his left and thus going out, in, or across, the avenue, and taking the risk of a collision with cars going northward and on the east side of the highway. He took the latter of these two hazards, with the result that he came into collision with the automobile driven by the plaintiff, and caused the injury complained of. His excuse for not pulling to his right and passing the car in front of him was that there were cars parked along the west side of the street, blocking that space. There is conflict with regard to the position described by this defendant.

In the first place, it was denied by witnesses that there were cars parked on the west side of the street, blocking his passage. There was also evidence that he failed to promptly apply his hand or emergency brake. Defendants contend that the operator of the automobile, finding himself in the position of danger described, was justified in selecting, in accordance with his best judgment, the course to be pursued in the emergency, and having so elected, he could not, as a matter of law, be held responsible for the accident and its consequences, and that the two prayers of the defendants to withdraw the case from consideration of the jury and direct a verdict for the defendants should have been granted. The rule of- law with respect to situations similar to the one we find here has been stated by this court in Potomac Edison Co. v. Johnson, 160 Md. 33 , 152 A. 633 ; Newman v. Stocker, 161 Md. 552 , 157 A. 761 .

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