Hempel v. Hall

Adkins, J., delivered the opinion of the Court. On October 30th, 1918, at 10 o’clock P. M. appellee, while crossing 10th Street or Windsor Mill Road, in the City of Baltimore, was struck and injured by the automobile of appellant which he was then driving. The testimony shows that both of them before the accident happened were going op. North Avenue west towards 10th Street.

The only excep-, tion iu this ease is to the granting of plaintiff’s prayer and to the rejection of defendant’s first, second and fourth prayers. The plaintiff’s prayer was the usual damage prayer and was properly granted unless the case should have been, withdrawn from the jury. The defendant’s fourth prayer was. erroneous at least iu failing to recognize the right of way which the automobile law of this State gives to pedestrians at crossings. In the brief of appellant it is said,, “there is only one error assigned in the case and that is the failure of the Court to direct a verdict for the defendant,” and that was the only point argued before us.

So the only question we have to decide is, should the Court below have granted either the first prayer of the defendant which asked the Court to instruct the jury that there was no evidence legally sufficient to entitle the plaintiff to recover; or the second, which sought to have the jury instructed “that it appears from the uncou ¹⁷⁶ tradicted evidence in this case that the plaintiff’s injuries were caused directly by the failure of the plaintiff to exercise such care and caution for her own safety as is ordinarily exercised by a prudent person under similar circumstances, and the verdict of the jury shall therefore be for the defendant.” These prayers both assume the truth of all of plaintiff’s testimony so in this case it will be necessary to refer to very littlei of it. She testified substantially as follows: That after step^ P'ing down from the sidewalk into the street in the act of ¿róssing’ 10th Street, appellant’s machine swung around from North Avenue into 10th Street and hit her and that is all that she remembers as to the accident;, that before stepping off from the pavement to the street she looked both to her right and to her left, that is up and down 10th Street, and no automobile was then in sight; then immediately, almost, after this she stepped into the street and started to cross, and just as she started to cross, the automobile swung' around the comer from North Avenue and struck her; that no signal of any kind was given that a machine was coming, “absolutely none”; that she is positive no horn was sounded; that her eyesight and hearing were very good. Appellant testified that he was going only eight miles an hour; that he blew his horn before he got to 10th Street and again before he made his turn into 10th Street. On the issue of the negligence of the defendant, if he failed to blow his horn that was enough to send the case to the jury.

The plaintiff testified positively that he did not blow it; and she was within a few feet of where he says he blew it and where it was his duty to blow it, and moreover at the time she was in a position where it was her duty to be listening before crossing a much used thoroughfare with which she was familiar, and the danger of which she knew. In United Rwys. & Elec. Co. v. Crain, 123 Md. 332 , which is a case of collision between a street car and an automobile at a crossing in Baltimore County, Judge Pattison, speaking for the Court, says: “The record in this case dis ¹⁷⁷ closes no legally sufficient evidence of any negligent act of the defendant having causal