Mahan v. State Ex Rel. Carr

Offutt, J., delivered the opinion of the Court. At about 6 o’clock in the evening of September 23rd, 1935, Alvin O. Carr, the infant son of Norval Carr and Agnes Carr, the appellees, while walking from the home of his parents No. 426 Washington Street, in Havre de Grace, Maryland, to the home of a neighbor a few doors away, was struck by an automobile driven along that street by Charles A. Mahan, the appellant, and as a result of the collision suffered injuries which caused his death. ³⁷⁶ On November 22nd, 1935, his parents brought this action in the Circuit Court for Harford County against Mahan to recover compensation for the loss of the “pecuniary benefits and advantages” which they sustained as a result of his death. The case was removed to the Circuit Court for Baltimore County, where it was tried. The trial resulted in a verdict and judgment for the plaintiffs, and from that judgment this appeal was taken.

The record submits eight exceptions. Of these, two relate to rulings on evidence, the others tp rulings in connection with the instructions requested by the parties. There was in the record evidence tending to prove facts which may be thus stated: Washington Street runs north and south. The driveway for vehicular traffic is twenty-four or five feet wide; of that width the middle part is macadamized, and on either side of the macadam is a dirt shoulder less than five feet wide.

The house numbers on the street run from north to south, the even numbers being on the west side. There is a sidewalk on the east side of the street, there is none on the west, so that on that side access to the houses abutting on the street may only be had from the driveway. In front of the houses on that side of the street are little grass plots, through which narrow board walks lead from the houses to the driveway. About fifty feet south of the Carr house, Washington Street intersects Revolution Street running east and west.

At the time of the accident an automobile was parked in front of No. 422 Washington Street, partly on the dirt shoulder and partly on the maoadam. Because of a wire supported by iron stakes surrounding one of the grass plots between the board walk of No. 426 and No. 420, it was necessary for one proceeding from one of those houses to the other to travel the driveway of the street. Just north of No. 426 there was a tree, which is referred to in the evidence of one witness to identify the location of the parked automobile. Prior to the accident, Alvin’s older brother had been sent to a neighbor living at No. 420 Washington Street to get grass for rabbits which the Carrs kept.

At that ³⁷⁷ time Alvin, who was playing in their yard with a wagon, asked Mrs. Carr, who was sitting on the porch of her home, if he could go with his brother. She told him that he might go, and he then went from the board walk, in front of her house, to the dirt shoulder on the driveway of the street. The parked automobile was between him and No. 420, the home of a Mrs. Gordon. To reach that house it would have been necessary for him to go on the macadam part of the road to pass the parked car, because the left wheels of that car, which was on the west side of the street facing south, were on the edge of the macadam.

Before he reached the macadam and while still on the dirt shoulder, an automobile driven by Mahan going south on Washington Street struck and injured him. Mahan’s automobile was proceeding slowly, at from eight to ten miles an hour, and the collision occurred at a point about twenty-six feet south of the parked car. In reference to that Mrs. Carr gave this testimony: “How far do you think it was from the point where he was struck to where the other car was parked? A. I could not judge, it was the width of the other side of the double house I was living in and our alley way there, the board walk, but I didn’t measure that. * * * Q. And just as he was about to step upon the macadam in front of that parked car he was struck, is that right?

A. Yes, but that car was two houses from my house, he was not close to the parked car, there was a house and yard in between where my boy stepped oif my board walk. Q. How far ? A. I didn’t measure, but 424 and her walk on the side of her house before you come to the parked car. Q. Let me see if I can help you on the distance so we won’t have any mistake about that.

Now the scale shows from the edge of the wire fence to there, the distance is approximately twenty-six feet, is that about right, your walk to the end of the wire? A. I could not judge it in feet because I never measured it and am not a judge, but I know he had a part of my yard and part of Mr. Pelzer’s yard.” In describing the accident she said: “When he stepped ³⁷⁸ up on the dirt shoulder to go around the car I looked up as Mr. Mahan pulled to our side of the car, and his right bumper struck him land whirled him around three or four times and threw him under the car and he rolled over several times towards the middle of the street and the rear wheel, the back wheel went over the middle part of his body, his arms were laying out and he ran over his arms and body, and at that time I was standing on the board walk trying to get Mr. Mahan to stop and he didn’t look over. Whether he heard me or not, I don’t know, and as he got over the boy, the boy, got up and walked to the edge of the street. Q. On the opposite side?

A. Yes, he was in the middle of the street.” He was struck by the extreme right end of the bumper, and when he was struck two wheels of Mahan’s automobile were on the dirt shoulder. After the accident Mahan, in describing the accident to Robert P. Fadely, connected with the police department of the Pennsylvania Railroad Company, said that he did not see the child at all; that he was watching another automobile coming north which at that time was south of Revolution Street. Fadely testified in part as follows: “Did he tell you that this car was coming up the street and he was watching that car to see how it was going to turn and that he didn’t see the child until the child ran in front of him? A. He told me he never saw the child.

Q. Until the child ran in front of him? A. His attention was attracted by people hollering. Q. He told you he didn’t know he hit the child ? A. At the time he struck it he didn’t.

Q. So now he didn’t even know he had hit the child? A. Not at the time the child was hit, nor until after he hit the child. Mr. Mahan told how his fender was so high he could not see the child for his fender.” A fact that threw some light on the last statement of the witness was that Mahan is but four feet ten inches in height. Mahan at the time of the accident was about eighty years old, he had lived in Havre de Grace thirty-four ³⁷⁹ years and was “familiar with all of the streets in Havre de Grace,” and at the time of the accident was driving a taxicab.

In describing the accident he said: “I had been out to the station and I was going home and down in the parked cars, on the side of the road where I was going past, just this side where Mr. Carr lived, I pulled out a little in the center of the road to pass it. I saw another car coming up and I was watching it and I looked to the other side and I didn’t see any one and I threw my eyes back on the car that was coming up and about that time a little child ran across. I never saw it until it came out from behind my hood on the left hand side and I only saw the top of its head. The child was not over three years old, I guess, something like that, and then as soon as I saw the child I threw my brakes on and stopped as soon as I could.” He said that the parked automobile was in front of Mr. Lofton’s place (at No. 422 Washington Street), and then gave this testimony: “The fact is, Mr. Mahan, you never did see the Carr child, until after your car struck it?

A. I did not. * * * What did you mean when you said ‘pulled to the right.’ Q. What did you mean by that? A. I had pulled over a little after I passed this parked car. I pulled in to give the car coming up the street plenty of room to pass me. Q. When you were in the act of doing that, was not that the time the Carr child was struck?

A.Yes, sir. Q. You had your attention focused on the car that was approaching you in Washington Street? A. I had not a minute and then when I looked at it, the child dropped across ahead of me.” In the course of Mahan’s cross-examination, he was asked whether, in an application for a chauffeur’s license filed with the Commissioner of Motor Vehicles on March 20, 1934, he had not given his age as sixty-six years. He replied that, while he had not given his age correctly, he did not know what age he had given.

He was then shown a certified copy of the application, and asked whether he had not stated in it that he was born in 1867. He said that that statement appeared in the appli ³⁸⁰ cation. The certified copy of the application was then “filed” in the case. He was then asked what reason he had for misstating his age, and replied, “No particular reason.” That evidence was admitted over the defendants objections, and those rulings are the subject of the second and third exceptions.

The second exception, which refers to the admission of the certified copy of the application, also embraced other rulings and was for that reason objectionable in form. But apart from that criticism the ruling was free from reversible error. Properly and technically, the plaintiff should not have interrupted the defendant in putting on his case by offering evidence on the plaintiff’s behalf. The orderly procedure would have been to have made the offer after the defendant had concluded his evidence.

Moreover, since Mahan admitted that he had made the misstatement, there was no reason for offering it at all. But since he had made that admission he could not have been injured by the admission oif a statement made out of court which was in substance identical with that which he made as a witness. That it was permissible to ask him on cross-examination whether he had falsely stated his age in the application seems obvious enough. He had testified to his age in chief.

The fact that he had been willing to misstate it in order to obtain a chauffeur’s license did reflect on his credibility, and was'therefore admissible. Panitz v. Webb, 149 Md. 75, 80, 81 , 130 A. 913 ; Jones on Evidence, secs. 844, 845, 849. Coming to the rulings on the prayers, the first exception deals with the refusal of a demurrer prayer offered by the defendant at the close of the plaintiff’s case. Since the defendant offered evidence on. his own behalf following that ruling, he waived his objection to it, and it is not open for review in this court.

Brown v. Hebb, 167 Md. 535 , 175 A. 602 ; Pennsylvania R. Co. v. Cecil, 111 Md. 288, 298 , 73 A. 820 ; Goodman v. Saperstein, 115 Md. 678, 683 , 81 A. 695 ; Knecht v. Mooney, 118 Md. 583, 589