Epstein v. Ruppert

Briscoe, J., delivered the opinion of the Court. This is a suit by tbe plaintiff against the defendant company, trading as the Baltimore Bargain House, to recover damages for personal injuries received by him on the 5th day of April, 1915, by reason of the alleged negligence of the defendants, in driving an automobile along Baltimore street, one of the thoroughfares of Baltimore City. The Record in the case contains four biffs of exceptions. The first, second and third present questions upon the admission of evidence, and the fourth relates to the rulings of the Court upon the prayers, and to the overruling of the defendants’ special exception to the plaintiff’s first prayer.

Prom a judgment in favor of the plaintiff for the sum of $500, the defendants have appealed. The declaration in the case alleges that while the plaintiff was in the act of prudently and carefully crossing Baltimore, street, at or about the intersection with Eutaw street, they being public thoroughfares of Baltimore City, the defendants negligently and carelessly drove, managed and conducted, and caused aud procured negligently and carelessly to be ⁴³⁶ driven, managed and conducted an automobile along and upon said Baltimore street, so that on the day and year mentioned and directly because of the premises, the plaintiff was knocked down and then and there seriously and permanently injured about the head, body and limbs, caused to suffer great physical pain and mental anxiety, disqualified in part from pursuing his ordinary avocation, whereby he has lost the emoluments he otherwise would have received from his said calling, has been obliged to employ medical aid and purchase medicines and appliances at great cost and expense and is otherwise injured and damaged. And that his injuries were directly caused by the negligence ánd- want of care of the defendants, their agents and servants in the premises, and without negligence or want of care on the part of the plaintiff directly thereunto contributing. The facts relied upon by the appellee to sustain the action are these: The plaintiff testified, that he was a stage carpenter and was about 29 years old.

On April 5, 1915, he stated, that “I was coming west on Baltimore street on a laundry wágon. I had got on the wagon with the man; he was going my way, the way I was going. I had a date at the Palace Theatre at eleven o’clock. And, coming west on Baltimore street, we crossed Eutaw, which was about twenty minutes of eleven, as near as I can judge, and we stopped on the far side of the street and I looked ahead before I got off and there, wasn’t anything in the block at all, no vehicles at all, but one truck.

I seen the big truck was nearer Paca street than it was to Eutaw, and in stepping off the wagon, rather, I just stepped on the ground whqn the truck hit me—what I knowed was a truck—because naturally my back was to it and I didn’t think that the automobile could—would—get to me before I got off the wagon and the wagon that I was on had started off again, just had started when this track hit me. Naturally it spun me around and I fell down and when ⁴³⁷ I looked around for the truck it was down between Eutaw and Howard streets about midway of the Mock.” He further testified that the wagon in which he was travel-ling was going west on Baltimore street and the defendants truck or automobile was travelling east, and that he was struck on the left foot, above the heel by the front wheel of the automobile at the northwest corner of Baltimore and Eutaw streets, as he stepped down from the wagon to the street, and as soon as he alighted on the ground, that he had an unobstructed view of Baltimore street, and before leaving the wagon he looked ahead and saw the automobile, it was the only vehicle1 in the block, except the wagon between Eutaw and Paca streets, the Mock being the length of the ordinary city Mock, and that after locating the automobile, “used my left foot on the shaft, then down with the right foot and threw my left foot on the ground and that is how he struck me.” He testified upon cross-examination as. follows: Q. How far away was this automobile when you. saw it ? A. Well it was closer to Paca street than it was, to Eutaw. Q. Well, you, were about fifteen feet, you say, from the corner of Eutaw street?

A. About ten or fifteen feet, yes. Q. What is the distance of that, block, do you know, between Paca and Eutaw streets? A. I judge it to he about 150 feet. Q. About 150 feet?

A. Yes, sir. Q. How much closer to Paca street, was this truck than it was to Eutaw street, when you fii*st saw it ? A. Well, I judge about one-third of the block. Q. In other words,—(Witness, interrupting) : About one-third up from Paca street, this way.

Q. Then at any rate the truck was not much over a hundred feet from you? A. That is, if the Mock is, only 150 feet ? Q. But I am asking you how far? A. I am just giving yon a rough idea.

Q. I want to know, to the best of your idea, how far this truck was from you—some idea of how far you would say the truck was from you ? A. Figuring the Mock was 150 feet, T would judge the truck was about 100 or 110 feet away from me. ⁴³⁸ John. IT. Kahl, the chauffeur testified that, he had been, in the employ of the defendants, for three years, and held that position in April, 1915, and remembered making a trip on the day of the accident.

As he neared Eutaw street lie noticed a wagon coming across the street. “The young man was about to get up1; I didn’t pay no attention, I kept on going.” The young man was sitting on the left-hand side of the wagon, and started to get up, at which time he was about twenty feet from Eutaw street, and right near' the German Rank at the corner of Baltimore and Eutaw streets. He did not see the young man get down off the wagon, and did not see his automobile strike the man. He stated that the steering wheel of his automobile is on the left-hand side, which was the side of the automobile nearest the wagon, and the front wheels of the automobile “are right under the seat, I sit right over the front wheels.” The hub' extends beyond the name “Baltimore Bargain House” in the front, that, is, the windshield, but the front wheels are right under the seat. Q. Now, then, if you had hit any one with the front wheels of that truck, could you have seen him ?

A. Yes, I could have. He further testified, he was. going about five or six miles an hour, with the current shut off, drifting down a little grade; that he was drifting because it was a hill, and he never comes down a hill fast; the truck was a 3% ton truck, and is a top. car1. Baltimore and Eutaw streets is a. traffic corner, but at the time of the accident there was no officer there. Witness was' on the lookout for1 an officer and when about twenty feet from the crossing saw this, man get up.

He also testified that he did not see the man get down from the wagon, and the only reason he thought, he was going to get off,