Jackson v. Forwood

Delaplaine, J., filed the following dissenting opinion: In this case there are two questions: (1) Whether there was negligence of the taxicab driver, and (2) whether there was contributory negligence of the pedestrian. First, I think there was sufficient evidence of primary negligence to justify submission of the case to the jury. The taxicab driver swore that, when he came around the curve about 1,500 feet away and saw the bus, he was driving at the rate of thirty-five miles per hour, and then gradually reduced his speed; but plaintiff swore that the car bore down upon her with such speed that she could not get out of its way. Officer Kisella of the State Police testified that the taxicab made skid marks sixty feet long extending from the hard surface to the shoulder.

Excessive speed may be inferred from such testimony as that the brakes were applied too late, or that the car did not stop until it had gone an extraordinary distance after the brakes were applied. Bozman v. State, Use of Cronhardt, 177 Md. 151 , 9 A. 2d 60 . It ³⁸⁸ is true that excessive speed or even the violation of a statute by a driver will not of itself support an action for injuries sustained by a pedestrian, and the pedestrian can recover only by showing that the excessive speed or the act which constituted the violation of the statute was the proximate cause of the accident. Sun Cab Co. v. Faulkner, 163 Md. 477 , 163 A. 194 ; Chasanow v. Smouse, 168 Md. 629 , 178 A. 846 .

The road on which plaintiff was injured is a boulevard, on which it is unlawful to operate a motor vehicle at a rate of speed greater than fifty miles an hour “under any circumstances or conditions.” Code, 1943 Supp., Art. 66%, Sec. 157 (d). It is also unlawful to operate a motor vehicle on any highway in the State at a greater speed than is reasonable and prudent under the conditions then existing. Code, 1943 Supp., Art. 66%, Sec. 157 (a). The statute declares that the fact that the speed of a motor vehicle is lower than the speed limit does not relieve'the driver from the duty to decrease speed when special hazard exists with respect to pedestrians or other traffic.

Code, 1943 Supp., Art. 66%, Sec. 157 (e). In this case the driver could see the bus at a distance of 1,500 feet, and the atmosphere was clear. The taxicab driver admitted (1) that for a short while the headlights of the bus blinded him until he got within ten or twelve feet of it, and (2) that it was not until he was ten or twelve feet away that he first saw plaintiff. In view of the fact that a large bus was standing in the road, it was a duty of the taxicab driver to keep his car under control in anticipation of the possibility that passengers had alighted from the bus and might be using the thoroughfare.

The fact that the headlights on the motorbus may have made it more difficult for the driver to see did not relieve him from his obligation to use proper care to observe their presence. If he could not see them because of the glare of the headlights, he should have not only reduced the speed of his car but also given warning signals to any pedestrian who might possibly be exposed to the danger of collision. I think ³⁸⁹ it may reasonably be inferred that the driver was negligent from the testimony (1) that he failed to give any warning signal whatever of his approach, (2) that the car made skid marks sixty feet long, although the brakes were in very good condition, and (3) that the pedestrian was hurled a distance of thirty-six feet by the impact. Secondly, I do not believe the pedestrian was guilty of contributory negligence as a matter of law.

In order to sustain that ruling, it is necessary to determine that the evidence shows contributory negligence so unquestionably as to prevent any rational difference of opinion on the subject. If a pedestrian suddenly steps from a sidewalk between intersections into the path of an approaching automobile, and he either did not look or made no effort to avoid the automobile by stopping or stepping aside, although he could easily have seen it in time to have taken a position of safety, he is guilty of contributory negligence as a matter of law and is precluded from recovery for resulting injuries. Thompson v. Sun Cab Co., 170 Md. 299 , 184 A. 576 ; Ebert Ice Cream Co. v. Eaton, 171 Md. 30, 37 , 187 A. 865 . But as a general proposition, contributory negligence in an action for injuries sustained in a collision with a motor vehicle presents a question for determination by the jury.

Crunkilton v. Hook, 185 Md. 1 , 42 A. 2d 517, 520 . The mere fact that a pedestrian, who has been struck by a motor vehicle, could have avoided the accident, does not necessarily mean that he is guilty of contributory negligence. It is not the province of the court to draw inferences and make deductions from evidence. To do that is peculiarly the province of the jury, which the court should not invade.

To justify withdrawal of a case from the jury on the ground of contributory negligence, the evidence must show some act so decisively negligent as to leave no room for difference of opinion thereon by reasonable minds. Where there is a conflict of evidence as to material facts relied on to establish contributory negligence, or the act is of such a nature that reasonable minds may draw different conclusions after considering ³⁹⁰ all the circumstances surrounding the happening of the accident, it is for the jury to decide whether it constituted contributory negligence. Henkelmann v. Metropolitan Life Insurance Co., 180 Md. 591, 597 , 26 A. 2d 418 ; Crunkilton v. Hook, 185 Md. 1 , 42 A. 2d 517 ; National Hauling Contractors Co. v. Baltimore Transit Co., 185 Md. 158 , 44 A. 2d 450 . Thus, it has been held that a pedestrian who starts across a street at a cross-walk at night and fails to see an automobile approaching a block away, and is struck near the opposite curb, is not guilty of contributory negligence as a matter of law.

Thomas v. Metzendorf, 101 N. J. L. 346, 128 A. 162 . More than twenty years ago this court observed that many automobile drivers “act as if it is incumbent upon one traveling on foot to use an extraordinary