Coplan v. Warner

Boxp, O. J., delivered the opinion of the Court. Exceptions in this case, a suit arising out of a traffic accident, have brought up for review rulings of the trial court on prayers for instructions to the jury and on objections to remarks by counsel in argument. Warner, a man somewhat infirm from an affection of the bones, was struck by, or collided with, Coplands Ford trunk, as Warner was crossing Poplar Grove Street, in Baltimore City, going west on the north side of Belmont Avenue, and the truck was proceeding north on Poplar Grove Street. The accident occurred on a cold night in winter.

The evidence on the collision is meagre; both parties testify to ignorance of the other’s presence on the street until the instant of collision. Warner says he did not know at the time what struck him, that, proceeding with his customary extreme caution, he had waited before crossing until he saw no vehicle approaching the street intersection in any one of the four directions, within a block and a half, and that he was two-thirds of his way across the bed of the street, at the regular place of crossing, when he was suddenly struck from the left. He; had not looked for approaching vehicles after he liad left die sidewalk, except that when half-way across he looked down Belmont Avenue for machines that might possibly come up that street and turn into Poplar Grove Street. Copian, driving the truck himself, testified that he was coming from a grocery and meat store kept by him on Poplar Grove Street, one block below the place of accident, running at a moderate speed on the right side of the street bed near the center, with his headlights lighting the way thirty or forty feet ahead of him, at what was otherwise a dark place, and that, when he had reached a point about a few doors beyond the crossing, what seemed at the moment only a bundled object appeared suddenly on his left, coming into his left front ⁴⁶⁶ wheel.

He said he had blown his horn upon reaching the southern side of the street intersection, that he thought the horn must have bewildered Warner and made him turn back. The truck stopped at the spot, and he had the plaintiff taken to a hospital; and then, upon examination of the place of accident, a little above the crossing, Coplan and an officer who came up found some coins dropped in the street bed. The verdict and judgment having been against Coplan, he appeals. The first question raised, on exceptions to the instructions, is as to the legal sufficiency of evidence to support a finding of negligence on the part of Coplan.

Meagre as the evidence is, we think there was sufficient for the consideration of the jury in the positive and reiterated statement of Warner that the point of collision was at the regular place of crossing, two-thirds of his way across, going west. If the jury should accept that testimony as correct, then it would follow that Coplan, driving north, was driving at the time on the left-hand side of the street, where he should not have been driving, and where the plaintiff should have been free to walk without danger from his left. This would constitute a lack of ordinary care on Coplan’s part, and a prayer for direction of a verdict for the defendant for lack of evidence of any negligence by him was, therefore, properly rejected. Direction of a verdict for the defendant was asked on the additional ground that the evidence established contributory negligence on the part of Warner himself.

While there was perhaps evidence from which the jury could find that Warner was negligent in failing to look and see the oncoming lighted truck, after the horn was blown, as he was crossing the first half of the street, and in walking back against the truck, it would be impossible for the court to say that such negligence was established beyond question. As has been said, there was evidence that the point of collision was two-thirds of Warner’s way across, where he might properly assume that he was safe from a car coming north if one came,'and evidence that he did not turn back but was proceeding steadily on his way ⁴⁶⁷ west. There is in this a conflict of evidence on the question of contributory negligence which must be referred to the jury for solution, as it was. And we find no error in that action.

The trial court refused another prayer of the defendant for an instruction that, if the jury should find that the plaintiff’s injury resulted from an unavoidable accident, unmixed with negligence on the part of the defendant, their verdict should be for the defendant. And the prayer included a definition of negligence. The refusal of it is attacked as erroneous. The prayer might be read as merely defining in one way negligence on the defendant’s part producing the injury, or as stating in one way the rule that the defendant would not be liable unless such negligence should be proved.

Washington etc. Turnpike Co. v. Case, 80 Md. 36, 45 ; Dwyer v. Chew, 149 Md. 281, 285 . And compare W. Va. Central etc. R. Co. v. Fuller, 96 Md. 652, 67 ; Balto. & O. R. Co. v. Worthington, 21 Md. 275, 283 ; Ferguson v. Brent, 12 Md. 9, 33 ; Stockton v. Frey, 4 Gill, 414 , 423. And the jury were fully instructed