Jones v. Dickerson

Melvin, J., delivered the opinion of the Court. On May 25, 1944, shortly after midnight, as the appellant, Lonnie R. Jones, was driving his automobile eastward on Harlem Avenue in Baltimore City, his car was struck by one approaching from his left and driven by the appellee, Isaac J. Dickerson. The collision took place at or near the street intersection, damaged the appellant’s car beyond repair, and drove it into the front of a store building on a nearby corner. Two suits for damages resulted — one by the owner of the store property against Jones and Dickerson and the other by Jones against Dickerson.

These suits were tried before the same judge, without a jury, in the Baltimore City Court. Judgment in the former suit was against the defendants, jointly, and in the latter the judgment was for the defendant, both being based on the trial court’s finding that Jones, as' well as Dickerson, was guilty of áctionable negligence. No appeal was taken in the property owner’s case, the present appeal resulting from the adjudication between the two motorists. At the trial, no exceptions were reserved and the case, therefore, comes before us for review under Trials Rule 9 of our General Rules of Practice and Procedure.

According to this Rule, “the judgment of the trial court shall not be set aside on the evidence unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of thé witnesses.” The sole reason assigned for the judgment from which' this appeal was taken is contributory negligence on the part of the appellant, who was the plaintiff below. The ⁵⁰¹ relevant facts of the case are: Appellant was operating his car at moderate speed (about fifteen miles an hour) on Harlem Avenue, when he came to the intersection of Harlem and Fremont Avenues; he first looked to his right and then to his left and saw the appellee “coming so fast I couldn’t get out of his way, and he knocked my car into the store front”; when appellant first saw appellee’s car it was about mid-way of the block to the left of the intersection, and when the impact took place appellant was “near about across.” He tried to get out of the way, he testified, by “stepping on the gas” but the car did not pick up fast enough to avoid collision. According to the appellee, who was the only witness for the defense, the collision took place practically in the center of the intersection of Harlem and Fremont Avenues, when both cars were going about fifteen miles an hour. He offered no explanation of his own action in moving into the intersection without even claiming to have slowed down, although the right of way was admittedly against him.

There was some testimony on both sides as to a bus, or trackless trolley, which was in front of the appellant’s car, but which stopped at