Consolidated Gas Electric Light & Power Co. v. Rudiger

Pattison, J., delivered the opinion of the Court. The appellee, Julius Rudiger, on September 1st, 1923, was struck and injured by an automobile owned by the appellant, the Consolidated Gas Electric Light and Power Company, of Baltimore, and operated by one of its employees in the discharge of his duties, while he, the appellee, was crossing the York Road in Towson, Baltimore County, Maryland. Suit was brought by Mr. Rudiger against the appellant in the Circuit Court for Baltimore County to recover damages for the injuries sustained by him caused, as alleged, by the negligence of the appellant. The case was removed to the Circuit Court for Harford County, where it was tried and a judgment was recovered therein by the appellee against the appellant.

It is from that judgment that this appeal is taken. There is but one exception found in the record, and that is to the rulings of the court upon the prayers. ²²⁸ There is a plat in the record which the reporter is asked to insert in his report of this case. Mr. Rudiger, a short while before the accident, was standing with a number of others on the sidewalk and in front of and on the south side of the engine house, which is shown on the plat. He started to cross the York Road to Steiber’s ²²⁹ store almost opposite and when he had reached, or nearly reached, the curb on the south side of the road, he was struck from the rear by the automobile of the appellant, which it seems had suddenly turned to the right, and after striking him the front wheels of the automobile went upon the sidewalk nearly at right-angles with the road.

At the time of the accident there was in front of Steiber’s store a pony and cart, in which there were one or two small children. The pony was near to and facing the curb with the cart extending out into the street at right-angles with the curb. Hear to and south of the pony and cart was a truck parked against the curb, extending at right-angles with the road, and projecting into it a distance of eight or nine feet. York Road at the point where the appellee attempted to cross is about forty feet in width. .

Hr. Rudiger was at the time of the accident about eighty-five years old and was then and had been for thirty-six years bailiff in the Circuit Court for Baltimore County. He testified that the accident occurred between five and six o’clock in the daylight of a clear, nice day and the road was dry. Just before the accident happened he was standing with others on the corner of the engine-house.

Before starting across the road he said he looked up and down, but saw nothing coming in either direction, nor did he hear anything. He said he crossed the road where the pony cart was, and When he was putting his foot on the curb he rested his hand on the pony? and at such time something struck him — it was the automobile. In crossing the road, he said, he was walking pretty fast, but not running, “as there was nothing in the way of my walking — -no car about.” On cross-examination he said there was “no crossing anywhere there” near where he crossed, that is, “no place fixed there for people to walk on in going across.” He was then asked if he saw a car coming in either direction when he was crossing and he said, “Ho, sir,” and when asked if he looked, he replied, “You bet I looked.” He further testified that from the middle of the road at that point you can see several hundred yards up ²³⁰ York Road towards his home, but you cannot see so far from the cross roads; that “from the middle of the pike you can see some distance towards Baltimore, but there is very seldom any danger coming up the pike from that direction, as the automobiles do not come so fast,” it being up grade. He said, “I did not go fast or slow, I didn’t run, but I went as fast as I could walk.” “Ques.

When you got in the middle of the road did you stand still? Ans. No, sir; I wouldn’t do that, anyhow. Ques.

You would not do that ? Ans. No, sir; I had no cause to stop;' I wanted to get across. Ques.

You don’t know where the car struck you — whether it was a car or really what did strike you? Ans. I do not know what struck me, because I was looking the way I was going. I had put one foot on the curbstone; but, before I got the other up there, I was struck.” Joseph S. Parker, manager of Steiber’s grocery and provision store, testified that he did not see the car strike Mr. Rudiger, but saw him falling to the ground a few feet from the curb.

His head was within three feet of the curb and his feet were out towards the middle of the road. A truck was backed in there and a pony cart was between Mr. Rudiger and the truck. The noise on the street first attracted his attention to the accident and he ran to the door and saw the automobile coming towards the store, but he did not see it before it struck Mr. Rudiger. The curb is about six inches high in front of the store.

He further testified that Mr. Rudiger was coming towards the curb and fell toward it. That after he was hit and after he fell to the ground, the car moved on and the two front wheels at least went up over the curb. The car was north of where Mr. Rudiger lay upon the road. The evidence of Walter Hutchins, who was standing in front of the engine house about the time of the accident, was about the same as Joseph Parker.

George Gearhardt, a member of the state police, testified that he heard screeching of brakes, and when he went around the engine house he saw a car on the pavement. The front ²³¹ wheels of the car were on the pavement and Mr. Rudiger lying on the road just outside of the cnrh line. He saw upon the street marks from tires “drawing on the road,” from the back of the car out. They were approximately a length and a half to two lengths of a car or a little farther.

The marks were in a half-circle. Mr. Rudiger was lying below the car on the roadway. North of the engine house there is a street that goes through. He did not recall hearing any horn, but was attracted by the brakes dragging on the road.

Carvel Cox testified that he saw the accident as he was coming out of Held’s bakery store, which is on the corner above and next to Steiber’s store. When he ran out of the door he saw the car coming at a speed of between twenty or twenty-five miles an hour, possibly a little faster. “Just as he walked out he got about two or two and one-half feet from Mr. Rudiger, the machine came into the curb. The reason for that was that a lady with two children in a pony cart was backing out and the truck just below them cut him off and he threw the machine right into the curb. The whole thing went up on the pavement and just as it struck the curb, the right front fender struck Mr. Rudiger and swung him around.” He too did not hear any horn blow.

That when Mr. Rudiger was struck he was standing at the pavement with one foot on the curb and one on the road, like he was just going to cross or had just crossed the street. The impact threw Mr. Rudiger out into the road about one foot from the curb. He did not notice any marks on the road. “The car was coming straight down the York Road.” When he first saw it, it was just before it came to the cross roads at Shoemaker’s store, and was to the right of the east of the York Road, and between three and four feet from the curb, on the east side of the road. The road is very wide right in there.

After the driver crossed Allegheny Avenue he must have been out six feet from the curb and as he came to pass Steiber’s store he might have been more, but he was not any less. Between the pony cart and the corner {here was only one truck and that was on the lower side of the pony cart. ²³² The lady in the cart was backing out. The driver saw that, started to throw his brakes on as soon as he saw the pony was backing out. The driver either had to turn to the right and go on the pavement or hit the pony cart because he could not stop and the pony cart was about two feet past the truck and was backing out.” • Linwood Brookhart, a lieutenant and driver of the Towson fire department, testified that he was sitting in the front door of the engine-house when Mr. Rudiger started across-the street.

He did not notice him any more until he heard the noise of the brakes; when he looked up and saw the automobile strike him. He was then, he thought, about six feet from the west curb. The noise of the brakes first attracted his attention. He did not hear any horn blow.

Mr. Rudiger, when he went to the curb next to the engine-house, before crossing the street, stopped and looked and then started across the street. The left front fender of the car struck him. The automobile turned into the right toward the curb when the fender sidesjviped him. “You know how the fenders turn down in front — that is what struck him.” The front part of it struck him. Other witnesses for the plaintiff testified largely in corroboration of the evidence we have stated.

Edmund J. Mullaney, the driver of the automobile, when produced as a witness for the defendant, testified that he was going south on the York Road and stopped on the northwest corner of Allegheny Avenue and York Road to wait for Mr. Mattes, who had accompanied him to Parkton on business that day. After Mattes had passed him and “I was beginning to follow him — just as I started from the nortawest comer of York Road and Allegheny Avenue, I saw a man,” whom at that time he did not know, but who afterward proved to be Mr. Rudiger, “leaving the curb” on the east side of York Road at the engine house. He at the time had one foot on the -road and seemed to he bidding some one good-bye. The witness then said “I blew my horn, Mr. Rudiger looked and walked out into- the road.

He stood there and looked at ²³³ me as if he was deliberately standing there to let me pass. Another gentleman was coming north in a sedan — I later heard it was Mr. Hurst * * * After I got close to- Mr. Rudiger I thought he was going to let me pass, and I paid attention to machines that might shoot out on the road on the right. I forgot about Mr. Rudiger and when I looked around again be was right in front of me. I don’t know whether I put on my brakes, threw the car into low gear or what I did, but the next time I saw Mr. Rudiger he was right alongside of the car about one foot back from tbe left wheel; and he hit the fender next to the running board and crumpled up.

He fell over backwards and my two front wheels jumped up on the pavement; my rear wheels hit the pavement and I stopped.” When he observed Mr. Rudiger standing in tbe middle of the street, he was looking at the witness and was about twenty-five feet away. At that time he was not going over eight or ten miles an hour. When he stopped the- witness started to move up to pass him. “Ques. How far did you come from the point where yon were stopped in the street to the point where the collision occurred — what length of time did it take you ?

Ans. I don’t think it was over a half a minute. He was right on me. Qnes.

How was he travelling when you found that he was right on you ? Ans. He was running — he jumped right in front of the machine — it looked to me that he was going to stop in front of the machine. I had glanced toward the curb on the side, and when I glanced his way, he had jumped right in front of me, and I was not more than six feet from him and I pulled to- the right and went up- on the pavement.” The impact between Mr. Rudiger and tbe car happened “just as tbe automobile wheels hit the curb.” William D. Hurst, witness for tbe defendant, testified that on the -occasion of the accident he was driving north on York Road and as he neared the engine house he noticed an elderly gentleman going southwest -across the street. “Just before he got to the opposite side- he sort of hesitated, turned back and went back four or five steps, and then turned again as if be had seen some object and rushed right back to- the west ²³⁴ side of the street.” That when he stopped he was about fourteen feet from the west curb.

He was walking right fast. The automobile which struck him was “going south on York Road and got almost to the man when the man driving the car turned it to the west and pulled to the curb, and as he pulled to the curb the man and the automobile came together.” The left-hand side of the car struck the man. He could not see whether it was the fender or the running board. It looked to witness as though it struck Mr. Rudiger in the feet or legs.” When he first saw the car, “it had almost stopped at the avenue above the engine house and then it came on again.

It was not travelling fast * * * It looked to him as though it almost stopped along about the corner of Allegheny Avenue near Mr. Held’s store.” The witness “saw Mr. Rudiger push in between some vehicles. If Mr. Rudiger had looked in that direction there was nothing to prevent him from seeing this man coming down there.” The witness stopped just about the time the accident occurred. At the conclusion of the evidence the plaintiff offered three prayers, all of which were .granted. The defendant asked for seven instructions.

Its third and fourth prayers were granted while the others were rejected. Its first and second prayers asked for a directed verdict in favor of the defendant, the first upon the alleged ground that the injuries