Lipphard v. Hanes, Admr'x

Hammond, J., delivered the opinion of the Court. The appellant, Lipphard, while driving a borrowed car, struck a pedestrian who subsequently died from causes not related to the accident. A jury awarded the administratrix of the pedestrian a small verdict. Before this Court Lipphard, in seeking a reversal without a new trial (he does not want a reversal on a point which would bring about a new trial) presses only the contentions that the pedestrian was not crossing the street at a crosswalk and that he was guilty of contributory negligence as a matter of law, without regard to where he was crossing.

The pedestrian, Dale Leggett, lived on the east side of Chest ⁴⁰⁷ nut Avenue three houses north of its intersection with 8th Street in the Town of Bowie. Chestnut Avenue runs north and south and 8th Street runs east and west. There is a marked crosswalk from the southeast to the southwest corner of Chestnut Avenue. Leggett was crossing Chestnut Avenue from west to east when he was struck by an automobile proceeding north on Chestnut Avenue, driven by the appellant Lipphard.

The intersection was not controlled by a traffic light or a policeman. The impact occurred in the northbound lane of Chestnut Avenue, either, in the words of the appellant, “just south of, within or just north of” prolongations across Chestnut Avenue of the side lines of an eight-foot wide grass sidewalk which ran parallel with the north edge of 8th Street, between the curb and the fence surrounding a dwelling. This strip had been consistently used by pedestrians, including school children who had been assisted across Chestnut Avenue to and from it by a school patrol officer. The driver of the car, who had swung into 8th Street after hitting Leggett and struck a tree — he told a friend, the grandson of the victim, he would not have hit “Pop,” as he called Leggett, if he had not been drinking — first told the police a car which had been following him up Chestnut Avenue at a high rate of speed had struck Leggett, but later confessed that he had done so.

There was enough evidence of the appellant’s disregard of the pedestrian’s intention to exercise his favored right of way and of his inability properly to control the car to require the jury to pass on the question of primary negligence. We think, too, that the matter of contributory negligence was for the jury. The appellant argues that Leggett was crossing from the southwest to the northeast corner and there was testimony to that effect, but there was also testimony that he was crossing within a strip which we find to have been the north crosswalk. The investigating police officer testified that the point of impact, identified by the debris in the road, was some four feet north of an extension of the north curb line of 8th Street to the east across Chestnut Avenue, which would place the pedestrian in the north crosswalk over Chestnut Avenue.

The driver himself gave testimony