Domeski v. Atlantic Refining Co.

Delaplaine, J., delivered the opinion of the Court. Adam J. Domeski, of Lansdowne, brought this action against Atlantic Refining Company for injuries which ⁵⁶⁵ he sustained when a motor truck owned by defendant and operated by its employee struck his motorcycle while he was pushing it across Old Annapolis Road in Baltimore County. The accident occurred on October 12, 1948, near the intersection of Arbutus Avenue a short distance south of the city limits of Baltimore. Old Annapolis Road is a boulevard, designated in the law as a through highway, between Baltimore ahd Annapolis.

Its width, including a concrete shoulder 3 feet wide on each side, is 22 feet. Arbutus Avenue runs west of the highway. The road running east of the highway 50 feet north is called Violet Avenue, but it is practically a continuation of Arbutus Avenue. At 10:30 a.m. the plaintiff was riding his motorcycle on Arbutus Avenue toward Old Annapolis Road.

On the right side of the motorcycle was a sidecar large enough for one passenger. The plaintiff testified that he stopped at the stop sign 20 feet west of the intersection, and when he “edged close” to the highway he could see for a distance of about 500 feet to the north, but only about 150 feet to the south, his view in that direction being cut off by some hedge or bushes along the road. Not seeing any cars coming, he entered the intersection and turned to the south. About 7 or 8 feet south of the intersection the rear wheel of his motorcycle hit “a low place in the road,” causing the sidecar to tilt upward and the motorcycle to tilt over on the crash bar.

He stopped and got off and pushed the motorcycle out of the hole. The plaintiff then decided to cross the highway to see whether his motorcycle had been damaged. He testified that he looked to the north, and not seeing any cars coming from that direction he started to push the motorcycle across the highway. When he reached the center of the road, he looked to the south to see if there were any cars coming from that direction.

He testified: “Just about the time I got half way across, that’s when I saw it. It was too late. The truck was on top of me. * * * ⁵⁶⁶ Oh, I’d say about 25 feet away from me.” The bumper of the truck hit the side of the sidecar and threw the motorcycle over upon the plaintiff. The truck driver, Clarence H. Funk, who was called as a witness by the plaintiff, testified that he saw the plaintiff on the west side of the road, but he was only about 40 feet away when he saw the plaintiff in peril.

He immediately applied the brakes and came to a stop near the point of impact with the right wheels off the east shoulder of the road. At the close of the plaintiff’s case, the trial judge granted the defendant’s motion for a directed verdict. The plaintiff appealed from the judgment entered upon the verdict in favor of the defendant. It is an established rule in automobile accident cases, as in other actions for damages, that where there is a conflict of evidence as to material facts or more than one inference may reasonably be drawn therefrom, the question of negligence should be submitted to the jury.

But where it is clear from the uncontradicted evidence in the case that there is no rational ground upon which a verdict can be based for the plaintiff, the court should direct a verdict for the defendant. Cogswell v. Frazier, 183 Md. 654 , 39 A. 2d 815 ; Bush v. Mohrlein, 191 Md. 418 , 62 A. 2d 301 ; Baltimore Transit Co. v. State, for Use of Castranda, 194 Md. 421, 434 , 71 A. 2d 442 . It is a general rule that an automobile driver must exercise towards others on the highway that degree of care which a person of ordinary prudence would exercise under similar circumstances. Miller v. Graff, 196 Md. 609 , 78 A. 2d 220 ; Cocco v. Lissau, 202 Md. 196 , 95 A. 2d 857 .

Likewise, a pedestrian must use such caution for his own safety as a person of ordinary prudence would exercise under