Dashiell v. Moore

⁶⁶⁰ Offutt, J., delivered the opinion of the Court. J. Reginald Moore, the equitable plaintiff, appellee here, was on November 6th, 1938, injured in a collision between an automobile in which he was a guest passenger, operated at the time by Charles T. Dashiell, Jr., a mule, astray on the state highway between Salisbury and Princess Anne, in this state, and another automobile. Subsequently, Moore, an infant, brought this action through his mother and next friend against Dashiell to recover compensation for his injuries, on the theory that they were caused by Dashiell’s negligence. The trial resulted in a verdict and judgment for the plaintiff, and from that judgment this appeal was taken.

It presents two questions, one, was the evidence in the case legally sufficient to support an inference that plaintiff’s injuries were caused by defendant’s negligence, and, two, if it was, did the uncontradicted evidence in the case establish as a matter of law the fact that negligence of the equitable plaintiff, herein for brevity called the plaintiff, contributed to the accident which caused the injuries. The first and only exception relates to the refusal of defendant’s first, second, and third prayers, which sought a directed verdict for the defendant. The evidence in the case was sufficient to support a finding of these facts: On the day of the accident Moore’s brother had occasion to drive from Cambridge to Princess Anne. The plaintiff, and a friend, Reginald Porter, both nineteen years old, went with him, apparently for the trip and the drive.

When they reached Salisbury, the brother left the plaintiff and Porter there, and he went to Princess Anne. The two boys loafed around Salisbury for several hours, and then, tiring of its diversions or the lack thereof, decided to go to Princess Anne to meet Moore’s brother, and drive home with him from there. They apparently had no means of getting there other than “hitchhiking;” so they stationed themselves ott the state road leading to Princess Anne with the purpose of getting a free ride to that town. After waiting a half hour they were about ⁶⁶¹ to give up the plan when Dashiell came along and asked them if they were “going down.” They asked him how far he was going, and he told them “to Quantico.” Moore then said that they were going to Princess Anne.

They then got into Dashiell’s automobile, a one-seated Ford eoupé, and proceeded towards Princess Anne, Dashiell sitting on the left, driving, Moore sitting next to him on his right, and Porter on Moore’s right. That was between five-thirty and six o’clock in the afternoon, the day was clear, and the road was dry. Dashiell’s car was equipped with a radio and, a short distance south of the line dividing Wicomico and Somerset counties, he attempted to manipulate the radio dial located in the center of the dash board just below the windshield, and while so engaged the car struck a mule astray on the road, and as a result of that collision was deflected from its course and caused to collide with another automobile going north, which was driven by Herbert A. Holland, Jr. The lights on Dashiell’s car were in good condition, and were turned on at the time. He was driving on the right side of the road at about forty-five miles an hour, a lawful speed, the road was straight and level, so that the only negligence charged is his failure to discover the mule in time to avoid the collision.

At the time of the accident Dashiell was engaged in changing the stations on the radio. To do that he leaned forward and in doing so obstructed Moore’s vision. Neither Moore nor Porter saw the mule before the collision. Porter said that he did not see it because he was watching Dashiell’s manipulation of the radio dial.

Moore, in his testimony, said: “While he was changing the dial or the station on the radio, what were you doing? A. Mr. Porter and myself were both smoking and watching him. I could not see, more or less, because he was bent over slightly in front of me. Q53.

You only know that he was bent over slightly in front of you? A. Yes, sir. Q54. That is the last you recall?

A. Yes, sir. * * * Q73. Are you able to estimate how long Mr. Dashiell had been working on the ⁶⁶² dial of his radio or in the act of changing stations just before this accident? A. A few moments. Q74.

What do you mean by moments? A. Around ten seconds I would say, or a little longer. * * * Q6. The radio was going when you got in the car? A. Yes, sir.

Q7. And about ten seconds before the crash he undertook to change the station? Á. I won’t say just exactly ten seconds. Q8.

That is the best you can estimate it, is it? A. Yes, sir. Q9. He then undertook to change the stations?

A. Yes, sir. Q10. Were you looking at the dial while he was changing the station? A. I could not see it because he was more or less in front of me.

Qll. He was also between you and the road. He obstructed your vision down the road? A. Yes, sir.

Q12. You were sitting in the seat, then came Mr. Dashiell leaning over in front of you, then the open windshield in front of him, is that right ? A. Yes. Q13.

All you could see was the back of his head? A. I could see around it, but not clearly. Q14. You could not see into his face?

A. No, sir. Q15: His face was in front of. you ? A. I eould get a. slight side, view of him, but that is all. Q16.

Did you make any protest about him changing the radio at that time? ' A. No, sir. Q17. You didn’t have any objection to it? A. No, sir.

Q18. You saw nothing wrong with doing it at that time? A. No, sir. Q19.

When you said the road was open and clear, in front of you you meant on the right-hand side, didn’t you? A. Yes, sir. Q20. You didn’t mean to say there were no cars coming towards you on the left side of the road?

A. That I don’t recall. Q21. You don’t recall whether there was or not? A. No, sir.

Q22. What I meant to say, you don’t mean to say there were not any cars coming on the left? A. No, sir. Q23.

As a matter of fact, you have learned since you really crashed into a car — Mr. Holland’s car? A. Yes, sir.” Neither Porter nor Moore saw any north bound cars approaching, although Dashiell said that he saw two cars coming north, and that the accident occurred just as he met the first of these two cars. Holland, who was driv ⁶⁶³ ing the second of those two cars, said that the accident happened as the first car met DashielFs car, that he had seen DashielFs car approaching “some distance off,” that he heard a crash “and the headlights went out,” and the car swerved towards him, that he pulled as far as he could to the right, but in spite of anything he could do the other car struck his car and stopped some thirty or thirty-five feet south of it. He saw the car in front of him stop just before meeting the Dashiell car, and pull off on the dirt shoulder on the extreme right or east side of the road, and then go on, and he assumed from what he later learned that it had stopped to avoid the mule, although he never saw the mule until after the accident.

He also saw the car ahead of him stop after the accident, and speaking of its occupant he testified: “He got out of the car, or opened the door and looked back, shut his door and went on up the road.” When the lights on the Dashiell car “went out,” the witness was about a hundred feet away, but he did not see the mule until after the Dashiell car finally stopped, and then the mule was under it. M. T. Bohler, a member of the Maryland State Police, arrived at the scene at about 6:15 P. M. He found that “the right side of that automobile was not damaged. That was the side next to the ditch. The entire front of the car was damaged.

The automobile was mashed in, headlights broken, fenders in front mashed down, hood bent, something had hit the windshield, breaking back the brackets of the windshield, mashed in the top. The left side of the car was damaged. The left front fender, running board, rear fender, left front wheel. The tire was flat and the wheel was bent.

The bumper was bent down but I don’t think broken off. It was my assumption from the hair and blood, that it had struck a mule. I say that because the mule was lying under the car when I arrived at the scene of the accident, and was dead at that time. At that time no part of the mule was on the automobile, except as I stated before, some hair and blood was on the car.

That was on top ⁶⁶⁴ of the radiator and up against the windshield, the windshield frame. I found glass from the headlights of the car on the road about sixty feet from where the mule was lying.” He also testified that he found mule tracks on the west side of the road, but none east of it. At the point of the accident the concrete surface of the road is twenty feet wide, on either side of the concrete a dirt shoulder about six feet wide, and beyond that, on the west side about seven feet from the concrete surface of the road, there is a ditch about three feet wide and from eighteen to twenty four inches in depth, and beyond the ditch a field, and beyond the shoulder on the east side there is a railroad right of way, separated from the highway by a “small afea; wouldn’t be called a field.” Dashiell testified that he saw the two cars approaching, but that he did no! see the mule; that as the first or leading car met him the crash occurred, and he knew nothing more until he became conscious in the hospital. He'said that while he was changing the stations on the radio, he kept his eyes on the road ahead, and was not looking at the dial at all, that it was off balance so that it was useless to read the numbers on the dial, and that he was so familiar with its operation that he could find the tuning knob by touch without glancing at it.

This is a typical hitchhiking case, an exponent of a growing volume of litigation growing out of accidents to self invited guests in automobiles on the public highways. The custom of seeking free rides is so widely and firmly established, that it has not only added a new word to the language (Winston’s Dictionary), but it has even a sign language of its own. Dashiell said: “I thought these two young men waved me down. I stopped.

It wasn’t a thumb like this; it was down in front of them. I am motioning my thumb in what is known as the hitch-hike motion, and in response to that I stopped.” The custom and its incidents are in this state affected by no statutory rule, but are governed solely by the common law rule that one whose fault causes injury to an ⁶⁶⁵ other who is himself free from fault is subject to liability to the person injured. Briefly re-stated, its facts are that Dashiell, yielding to the invitation of the speaking thumb, stopped, and yielding to a kindly and generous impulse, took the two boys waiting by the roadside into his automobile to give them a free ride to their destination. While he was driving on the right side of the road at a lawful speed, suddenly his car crashed into a mule astray on the road, and he knew no more until he found himself later in a hospital.

He was at the time manipulating a radio, but he said that his eyes were not on the radio but on the road at all times, and that he did not see the mule before the crash. Nevertheless, if the evidence permits a rational inference that by the exercise of ordinary care he could have seen it in time to have avoided the collision, the conclusion is inevitable that he is subject to liability for the harm caused by his inattention. There is no direct evidence that he could have seen the mule before he struck it. Holland coming from the opposite direction failed to see it, and neither of the boys saw it, but one of them said that he was looking at the dial and not at the road, and the other that Dashiell’s head and body obstructed his view.

So that the only evidence to support the inference that he could have seen the mule before his car struck it, had he used ordinary care, are the facts that the mule was in the road when he struck it directly in front of his car, that his lights were in good condition and were on at the time, that another car coming from the opposite direction stopped just before it reached him and turned out as though for an obstruction, and that at the time of the impact he was manipulating his radio. So that the question is, are those facts legally sufficient to support the conclusion that had Dashiell exercised ordinary care he could have seen the mule before he struck it, and the valuation of the evidence in connection with that issue is a matter of law, rather than of fact, and the court is bound by its own decisions, and in ⁶⁶⁶ fluenced by the decisions, of other courts as to the legal value given similar' facts in other cases. Whether the plaintiff was an invited guest or a guest at sufferance is not material in this case, for the evidence permits a finding that he was an invitee, and if he was an invitee'the defendant was bound to use reasonable care to avoid injuring him. 5 Am. Jur. 629 ; Fitzjarrell v. Boyd, 123 Md. 497 , 91 A. 547 ; 20 A. L. R. 1014; 26 A. L. R. 1425; 40 A. L. R. 1338; 47 A. L. R. 327; 51 A. L. R. 581; 61 A. L. R. 1252; 65 A. L. R. 952; L. R. A. 1916E, 1190; L. R. A. 1918D, 205; 5 Am.

Jur. 626 ; Lavine v. Abramson, 142 Md. 222, 227 , 120 A. 523 . It is settled law in this state that one will not be permitted to say that he looked and failed to see what he must have seen had he looked. The mule’s neck and left front leg were broken, its neck was torn, and there was a “bad laceration or tear on the front side of its two front shoulders, right above its legs.” It may be inferred from the location of those wounds that it was facing the automobile when it was struck. It was a large mule, weighing twelve or thirteen hundred pounds, the whole front of the car, its left fenders and running board and left front wheel were damaged, the bumper bent down and hair and blood on the radiator and near the windshield, and the top of the car was mashed in “as though the car had gone under the mule and the mule had gone-up over the radiator and hood.” It may be inferred from those facts that when the collision occurred the mule