Hall v. Albertie

'Thomas, J., delivered the opinion of the Court. This appeal is from a judgment recovered by the plaintiff in the Circuit Court for Prince George’s County for injuries she is alleged to have sustained by reason of the negligent operation of -the defendant’s automobile. A motion has been filed by the appellee to dismiss the appeal on the ground (1) that the bill of exceptions was not filed in compliance with the rule of the circuit court, and (2) that the record was not transmitted to this Court within three months from the date of the appeal. The record contains a certificate of the court below that Pule 22 of that court provides: “That unless otherwise expressly allowed by the court, the bills of exceptions shall be prepared and submitted to the court within thirty days from the entry of the judgment in the case.” It appears that the judgment was entered on the 7th of June, 1921; that on the 5th of July the court below' passed an order extending the time for submitting bills of exception “for thirty days from that date,” and that on the 2nd of August the court granted a further-extension for that purpose to August 20th, 1921.

The record also contains the xollowing certificate of the judges who presided at the trial: “A document was placed in the hands of the court by counsel for the defendant on the 12th of August, 1921, purporting to be a bill of exceptions in the case * * * The subject-matter of said document was sev ⁶⁷⁵ eral times under consideration by the court on negotiations by counsel for tbe respective parties for settlement of bills of exception by agreement. The document was marked ‘Filed on October 26th, 1921.’ After several changes made at the suggestion of the respective parties the hill of exceptions accompanying was signed by the court on the 27th of December, 1921.” The affidavit of the clerk of the court below states that upon the signing of the exceptions the record was “made up and transmitted” to this Court “as soon as possible,” and it appears that it was filed in this Court on the 4th of January, 1922. It thus appears that the bill of exceptions was prepared and presented to the court within the time allowed by the order of August 2nd, which ivas passed before the expiration of the previous order (Carter v. Md. & Pa. R. R. Co., 112 Md. 599 ; Ray et al. v. Morse, 140 Md. 529 ), and that the delay in transmitting the record to this Court was due to the fact that the exceptions were not signed by the judges of the court below until the 27th of December, 1921.

While it is the duty of the appellant to prepare the bill of exceptions and present it to the trial judges for their signatures within the time allowed by the rule or order of court, it is for the judges to determine what the bills of exception shall contain. Ordinarily when the appellant has prepared the bills of exception in good faith and presented them to the court within the time allowed, he has done all that is required of him, and if, as the result of error in their preparation, or a controversy between the parties as to what they shall contain, time is required for consideration and settlement of the matter by the court, necessitating delay in signing the exceptions and consequent delay in transmitting the record, the appellant should not he deprived of his right of appeal because of such delay. In this case the certificate of the judges states that the bill of exceptions prepared by the appellant was submitted to ⁶⁷⁶ Ihom oil the 12th of August, aud was held “under consideration” pending efforts of counsel to settle “the exceptions” by agreement, and that after making several changes suggested by “the respective parties,” the exceptions were signed on the 27th of December, 1921. In the case of Cochrane v. Little, 71 Md. 323 , Chief Judge Alvey said: “It is the business of tlie judges to see that their rulings aro properly presented by the exceptions, and that the bills of exception are properly prepared and presented by the party taking the exceptions. * * A party should not be deprived of his right of appeal, except where the right has been lost by his own neglect or default,” and in the case of Snowden v. State, 133 hid. 624, the Court said: “It thus appears that the appeal was taken in time, that the exceptions were prepared by counsel for the accused with reasonable promptness and submitted to the judge on two occasions within the time limited by the previous orders regularly passed.

This was all that was required of counsel, and under the circumstances stated it cannot be held that the delay in signing the exceptions or transmitting the record was due to any fault of the appellant or his counsel.” As the bill of exceptions in this case was presented to the court below within the time allowed by its order, and as the record was transmitted to this Court as soon as possible after the exceptions were signed, the delay in transmitting the record cannot be said to be due to the appellant or his counsel, and the motion to dismiss the appeal must be overruled. During the trial three exceptions were reserved by tlie defendant. The first of these was to a ruling of the court below on the evidence, and has been abandoned in this Court. The second was to the rejection of the defendant’s first prayer, and the third to the rejection of his second prayer.

This Court has repeatedly said that the action of tin trial court on the prayers subniitted at the conclusion of the evidence is regarded as a single ruling, and should be made the ⁶⁷⁷ subject of one bill of exception. But notwithstanding the departure in this case from the well-settled practice in this State, we will dispose of the exceptions as if the ruling' complained of was properly presented. According to the evidence adduced by the plaintiff, she and her husband left their home at Woodmont, which is' located on the'Rockville pike, one of the public highways of Montgomery County, about 10.15 o?clock at night on the A‘>rd of Hay, 1919, to catch an electric car for Washington, 1). (1, at Edgemoor, where the railroad crosses the pike.

The highway, which was macadamized, was about sixty feet wide. The macadam was sixteen feet wide, and on each side of the macadam there was a dirt path about seven feet wide. The plaintiff and her husband were walking on the right-hand or west side of the highway in the direction of Edgemoor and Washington, and on the dirt path west of the macadam, when they were struck by the defendant’s automobile going in the same direction, and the plaintiff'' was seriously injured. The plaintiff also offered evidence tending to show that at the time of the accident the defendant’s ear was on the righthaud side of the road, and that the right wheels of ihe ear were on the dirt path about four feet from tbe west edge of the macadam ; that the road was straight, and that there was nothing to prevent the driver of the defendant’s car from seeing the plaintiff and her husband; that the plaintiff' did not hear the ear and did not see any lights indicating that a ear was approaching from the rear; that no warning or signal of its approach was given, and that the speed of the ear was not reduced as it approached the place of the accident.

The defendant testified that on the night of the accident he was returning ffrom Germantown with his; family to his home on Wisconsin Avenue; “that his nephew, Harold H. Watkins, who is now dead, was driving the automobile; that when they got within the limits of Bethesda they turned the bright lights off, put on the dimmer's and reduced the speed of the car to about twelve miles an hour; that when they got ⁶⁷⁸ within fifteen or twenty feet of the place where the accident occurred a car was proceeding north on the Rockville pike with glaring’ headlights in front and a spotlight on the side, which was brilliantly lighted; that the three lights blinded them completely, and immediately the driver applied his brakes in an effort to stop the car, but before the car could he brought to a stop the witness felt the car go over something that seemed to him to he a log; that when the car came to a stop witness immediately got out and Went back to see what the object was, and found Mr. and Mrs. Albertie (the plaintiff and her husband) lying on the macadam about three feet fi’om the eight-foot path which is ou the