Gittings v. Schenuit

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment obtained by the appellee against the appellant for damages to his automobile alleged to have been sustained by the negligence of the defendant’s agent. There are eleven bills of exception presenting rulings on evidence, and one presenting the rulings on the prayers — the two offered by the plaintiff having been granted and four of nine offered by the defendant having been rejected. The automobile owned by the plaintiff was a small, one which he was using at the time in delivering packages.

He purchased it second-hand and paid only $50.00 for it, although he said he afterwards spent about $100.00 on it. One peculiarity of the case is that the verdict rendered was just double what the automobile had cost the plaintiff, including repairs and improvements to it, and that too notwithstanding the fact that it was repaired after the accident for $'75.00. But of course the only concern this Court could have with that would be whether the measure of damages allowed by the Court was correct, and in the view we take of the case it is not necessary to consider that question. The defendant’s automobile was an eighteen liorse-power Packard, which seated four persons inside and two outside, but at the time of the accident there were five inside- There was an opera at the Lyric that night, and on such occasions policemen are stationed at the entrance to the court connected with the Lyric, so as to direct the movement of automobiles and the people crossing the pavement along Mt.

Royal avenue, on which the Lyric is situated. The chauffeur had been ²⁸⁴ waiting with his car on the corner of Oliver street and Mt. Royal avenue when young Mr. Gittings notified him that the rest of the family were ready. He then drove in to the court, got the family in the car and after blowing his hom the policeman stationed at the pavement signalled to him to come on.

The chauffeur thus described what then took place: “I comes out of there and as soon as I got about the width of my car, which is about fourteen feet long, away from that car there, well, fourteen and the end of my car would be about twenty-eight feet, some black thing shot out of there like that (indicating), and I was coming ont and I throwed my brakes on and I cut her over this way (indicating), that brings my wheel in this way and throws my spring out, the mud guard of this machine hits the hind wheel, and the mud guard of the machine grabs him in the hind wheel, and it is his own force that swings him around this way. I was to a dead stand-still.” The plaintiff and one other boy were riding in the front of his automobile and another boy was in the rear, but neither of them saw the defendant’s car before the accident — although they said that just before it struck a bright light shot into the plaintiff’s car. There is not a particle of evidence to show that the defendant’s car was going fast, but, on the contrary, not only the evidence of the chauffeur, but that of Mr. O’Neill, connected with the Stewart Taxi Cab Company, who was standing on the pavement and was called as a witness by the plaintiff, shows that it was running at a moderate speed. There was a line of automobiles along Mr. -Royal avenue near the curb, with an open space to pass into the Lyric conrt.

The plaintiff testified, “T was on the righthand side of the street, I should say about six feet away from the other automobiles that were travelling along the curb.” One of the boys who was in the car with the plaintiff, on cross-examination described the situation as follows: “Q. And if you had been looking in the direction of his machine before the collision you would have seen these radiators displaying this luminous light, would you not? A. At that time there were automobiles all lined up and down ²⁸⁵ Mt. Royal avenue leaving a little space for this roadway that come out of the Lyric into Mt. Royal avenue.

Q. Was this an opera night? A. Yes; I think it was. Q. And there were a great many automobiles congregated there, waiting for their occupants, is that right? A. Yes.

Q. Row, your automobile threaded its way along through this narrow passage, the only passage open at that time? A. Yes. about a yard and a half from these other automobiles. Q. About a yard and a half away, that is the lane you kept in ? A. Yes.” The uncontradieted evidence is that the defendant’s car had four bright lights in front and two in the rear, while the plaintiff’s car only had one (what he called) motor-cycle gas lamp in front, and a red light in the rear.

The statute (Sec. 14!) of Art. 56 of Code of 1912) requires that from one hour after sunset until one hour before sunrise, every motor vehicle (excepting motor cycles) shall “display two or more white lights on the forward part of such vehicle, so placed as to be seen from the front and of sufficient illuminating power to be visible at a distance of two hundred feet, and shall also display on the rear of such 'vehicle a lamp so placed that it shall show a red light from the rear and a white