Fotterall v. Hilleary

Offutt, J., delivered the opinion of the Court. This appeal is from a judgment of the Baltimore City Court in favor of the plaintiff in an action brought by Joseph R. Hilleary, the appellee, against Walter L. Fotterall, Jr., appellant, to recover compensation for injuries caused by an automobile operated by the defendant. The single exception submitted was taken to the refusal of the trial court to direct a verdict for the defendant, and the issue tendered is whether the evidence in ³³⁷ the case was legally sufficient to permit a recovery. Giving due effect to the rule that in dealing with such an issue all evidence tending to support the plaintiff’s claim, together with such inferences as are naturally and legitimately deducible therefrom, must be taken as true, the facts related in the following narrative are assumed to be the facts of the case.

The accident occurred on the Washington Boulevard near the Dorsey Road, in Howard County, Maryland, at about five thirty o’clock in the afternoon of January 14th, 1939. The day was clear, the weather was mild, and the road generally was dry, although here and there water from melting snow had frozen and formed icy spots on its surface. It had snowed on the day before, but snow plows had pushed the snow from the surface to the sides of the road, where it formed banks, about a foot in height, a foot or less removed from the paved surface of the road. The road at that point at the time of the accident was forty feet wide, divided into four ten-foot lanes, two southbound, two northbound, and the two sets of lanes were separated from each other by a yellow line along the center of the road.

On the day of the accident Hilleary and his wife, who lived in Washington, were returning in an automobile which he was driving to their home from a trip to New York. They left Baltimore for Washington at about four o’clock. At about a quarter after five o’clock, as they were driving south toward Washington, their automobile, either because it ran over an icy place in the road, or for some unknown cause, skidded across the road and came to rest with its rear end backed into the snowbank on the east side of the road at an angle of about forty-five degrees, with its front facing in the direction of Baltimore. Hilleary tried to get the car on the road, but the wheels “kept sliding and slipping,” and he left it and started towards a garage on the west side of the road.

As he started for the garage, Elliott L. Van Evera, who conducted it, came to meet him. Hilleary crossed the road and was talking to Van Evera, when an auto ³³⁸ mobile driven by the defendant struck and injured him. At that time Van Evera was standing with one foot in the snowbank, and Hilleary was “right alongside of him,” in fact Van Evera was holding his arm. Van Evera had told Hilleary that he had no towing truck, but told him of another garage a short distance away where he might find one.

While they were talking they were facing the traffic which was going south on their side of the road. As they were standing there they saw two southbound cars travelling on the inside southbound lane pass them, and at the same time they saw Fotterall’s car, also southbound, approaching over the west or outside southbound lane. Hilleary and Van Evera had taken a step or two in the direction of the garage where they expected to find a towing truck, when Fotterall’s automobile ran into them and struck both Van Evera and Hilleary. When he was struck, Hilleary’s attention was momentarily attracted to the garage, and although he saw Fotterall’s car when it was seventy-five or eighty feet away, he was not actually watching it when it struck him.

When he last saw it, it was coming straight ahead in the traffic lane in which he was, but because there was “plenty room for automobiles to go by,” and southbound automobiles* had “plenty room to clear him,” he did not continue to watch it. Although his hearing was good Hilleary heard no horn blown. He also said “the snow was right up to the edge of the road, was over the edge. I couldn’t say how deep it was but it was about a foot deep. * * * While Mr. Van Evera was talking to me about the garage, I was looking at it and it was off the edge of the west side of the road and in the direction of Baltimore.

The Washington Boulevard is a heavily traveled road, but there should be room for pedestrians going along the road. There was no reason for me to walk off the cement altogether in the snow, because we hadn’t walked far at all to get a chance to walk anywhere. Mr. Van Evera walked with one foot in the snow. * * * Then you must have seen it forty feet away? A. Well, the car was coming all right.

As I say, it was ³³⁹ coming straight. “Q. It was coming all right when it was coming forty feet away ? A. Yes. Q. And straight at you? A. I didn’t say straight at me.

Q. How was it coming at that time? A. The car was coming straight in the lane, the traffic, we were in. * * * I couldn’t say that his car was in the position that mine was when mine started to skid. I would say it was up further than where mine was when it started to skid, that is, further to Washington, so that his car had passed the place where mine was when mine had skidded.” The witness then corrected himself and said that when he last saw the defendant’s car it was further to Baltimore than the place that his car had been when it started to skid. “It hadn’t gotten to my car yet.” Van Evera, who was with Hilleary, testified: “While I was talking I was in the snow, Mr. Hilleary was standing on the edge of the concrete by the first ten foot lane facing traffic, north towards Baltimore. We were both facing Baltimore.

Two cars passed in the center lane going south towards Washington and on the right ten foot lane, which Hilleary was standing in, there was a gray car over a small incline. You could see it about a hundred and fifty feet away. You could see up the road to the graveyard which was about a quarter of a mile away, and this gray car just kept a continuous course on the edge of the concrete practically where Hilleary was standing, a straight course, and any car in a ten foot lane don’t take up ten feet. The other two cars went by, possibly three of them, and then the gray car, it got within about five feet from us, and I said, look out.

I already had hold of Hilleary’s arm, and I saw the front wheels lock within about five feet from me. By that time I couldn’t quite get hold to get over in the snow, I was already in the snow, one foot was> and he hit Hilleary with the right light, it hit my leather breeches, spun me around and set me in the snow from here to that jury over there.” He also said that when the accident happened it was “dusk” not dark, although Fotteral] had his dimmer lights on, but that “you could see towards Baltimore about four or five blocks.” ³⁴⁰ On cross-examination he testified: “I saw Mr. Foterall’s car as it was coming toward us, and it was down by the other garage over the incline, about 150 to 160 feet away. I watched the car coming toward us and I didn’t miss a thing. Q. Did this car ever skid before it came towards you?

A. Only until that there when I saw them front wheels lock at five feet, say about five feet. Q. About five feet? A. That’s about all. It wasn’t much more than that. * * * Q. How was this car going before it was five feet away from you?

A. Headed straight. Q. Headed straight at you? A. Oh, no — well, if he had kept his same course he couldn’t help but hit Hilleary, because Hilleary was right practically on the edge where the headlight would be, and the man kept his same course south on Washington Boulevard without making no effort to change his course. I could even see and I didn’t move.

I didn’t say that I did move. Q. Neither of you moved off of the road until that car was five feet away from you, is that right? A. There wasn’t no chance of moving. Q. Do you mean between the time the car was a hundred and fifty feet away and five feet away from you, there wasn’t a chance of moving off of the road?

A. I thought you said five feet. A pedestrian has the right of way according to them signs.” Mrs. Hilleary, who was also present, in referring to the accident, said: “Several cars had passed prior to the one that struck him but no others were around when this one car hit him. The car did not seem to stop; it just kept straight on ahead, and turned around and came back on the same side of the road. I would say it went for thirty to thirty five feet before it actually turned around and come back.

The car never changed its course. * * * After the accident I had a conversation with Mr. Fotterall. I said ‘How did you come to hit them’ ? He said T didn’t see them.’ * * * I had a further conversation with Mr. Fotterall on the way to the doctor. I think Mr. Fotterall discussed the fact that he stopped for another car, and I said ‘but there wasn’t any other car’.” ³⁴¹ Fotterall, testifying in his own behalf, said that when the accident occurred he was on his way from Baltimore to Washington, that when he left Baltimore he had had chains on his tires but had removed them a short time before his car struck Hilleary, that when the accident happened he was driving at forty-two or forty-three miles an hour, “straddling” the yellow line, “was one automobile in front of me, and I am not sure how many in front of him.

The car which was in front of me put his tail lights on to stop, about forty feet in front of me. He was driving the same way I was,' straddling the line. When he put his tail lights on I put on mine and applied my brakes as he signalled he was going to turn or something. I didn’t want to hit him so I applied my brakes there gradually.

I applied them and kept them on going for a few minutes and then this man seemed to slow up a lot faster. So I put them on some more and the car seemed to start skidding. The rear end seemed to go a little bit to the left and the front end towards the right side where Mr. Hilleary and Mr. Van Evera were standing or walking. I had noticed them when they were about seventy feet in front of me.

It was not quite dark yet. I had on my dim lights so that I could see all right. When the car in front of me first applied its brakes and showed its red rear lights, the plaintiff and the other man were about thirty feet in front of that car and off to the side. They looked like they were walking towards Baltimore, two abreast.

They were not in single file. Mr. Hilleary was on the concrete and Mr. Van Evera was off in the dirt- or snow. The snow was apparently right even with the cement. Mr. Van Evera was apparently off the cement, and the other man was a couple of feet out in the road, not all the way, he was on the cement but near the edge.” He also denied that he had made the statement attributed to him by Mrs. Hilleary, and asserted that he had blown his horn.