Panitz v. Webb

Offutt. J., delivered the opinion of the Court, Gustave B. Webb, the appellee in this case, was struck and injured by the appellant’s automobile shortly after six o’clock on the evening of November 16th, 1923, as she was crossing" Linden Avenue, where it intersects North Avenue in Baltimore City. North Avenue runs east and west, and at that point Linden Avenue, running northwest and southeast, intersects North Avenue at a wide angle, and along each ⁷⁸ avenue there is a double track street railway. A short distance east of Linden Avenue and adjacent to the west-bound tracks on North Avenue there is a “safety zone” for the accommodation of passengers boarding or leaving street cars west-bound at that point.

At that hour the traffic at the intersection was under the control of a traffic officer who operated a “semaphore,” or “Stop and Go,” signal, located in the angle formed by the south-bound Linden Avenue car tracks with the west-bound North Avenue car tracks. Mrs. Webb alighted from a west-bound North Avenue car in the “safety zone” for the purpose of transferring to a south-bound Linden Avenue car. When the traffic permitted, she crossed to the north sidewalk of North Avenue, and walked a short distance west to the curb on the east side of Linden Avenue, where she waited until the west-bound traffic on North avenue was released by the traffic officer. She then, according to her testimony, started across Linden Avenue to take a south-bound car, and had taken a couple of “strides” when she was struck and injured by the appellant’s automobile, which had turned into Linden Avenue from North Avenue and was going north.

The only eye witness of the accident offered on behalf of the appellee was Mrs. Webb herself, who gave in substance this testimony: “I watched the semaphore all the time so as to see when he would give me the right of way, and when he turned, giving me right of way I glanced towards North Avenue, just a casual glance, and then saw nothing coming, and started right over, and I got probably about — just a couple of strides, and this — something—some one hollered, ‘Look out, there’ (clapping hands), and at the same time I got this awful crash in my back, and I was thrown some distance up- North Avenue — up- Linden Avenue, rather.” She further testified that the front part of the car hit her on her left side, that she was thrown about twelve or fifteen feet, and that when she “landed” hér head was facing north up Linden Avenue; that she heard no horn blown, but that ⁷⁹ right after the accident Mr. Panitz, a colored hoy, and “another man” said, “We blew the horn.” On cross-examination she added that the weather was perfectly clear, that there was plenty of light on that occasion, that she had a transfer in her hand and expected to ride from Linden and North Avenues to the corner of Laurens and Linden; that when she first saw the Linden Avenue ear it was at Dueatel Street, a block above North Avenue, standing still, and when she last saw it, it was coming down Linden Avenue towards North Avenue and far enough away for her to “get across there without hurrying.” There was other testimony relating to the character and extent of Mrs. Webb’s injuries, as well as evidence tending to corroborate certain parts of her testimony concerning her movements before the accident. On behalf of the appellant there was evidence tending to show that, when his automobile, in which he and his brother were riding and which wa's being driven by a colored boy going west on North Avenue, approached Linden Avenue, the traffic, sign read “Stop,” and they stopped, and that when the traffic officer told them to go they “started all over again and turned the corner very slow”; that they had just started, and after they had turned the corner he “saw a lady on the sidewalk, she was standing still near the curb, and suddenly this lady began to run; she began to run riglit into them, that the front base of the car had already passed her”; that when she began to run the appellant “was almost tempted to shove the lady back with” his hand, but- be was afraid he would hurt her, and he “hollered to the boy, Jerome, ‘Quick, stop the ear,’ and he did instantly”; that before she started across Tunden Avenue, which is a, narrow street, she was standing on the pavement a:t the northeast comer of North and Linden Avenues, so near that he could almost "reach out”; that “she ran rigid into the back of the car at the fender on the right side”; that after striking her the automobile stopped within a, few feet and that then she was back of the car near the curb; that she was “just like a per ⁸⁰ son standing on the sidewalk, and all of a sudden she started to run”; that when the accident occurred the automobile was going at the rate of from three to five miles an hour, and that they blew their horn as they turned the corner. Following the accident, this action was brought by Mrs. Webb against the appellant in the Superior Court of Baltimore City, where it was tried before a jury. The trial resulted in a verdict and judgment for the plaintiff, and from that judgment the defendant took this appeal, which submits for our consideration two exceptions.

Mrs. Webb, in the course of her testimony, after describing the injuries which she said she had suffered as the immediate and direct result of the accident, said that about a couple of months before the trial, as she wa's rising from a chair, a muscle in her back contracted and she began to fall, and in trying to “right” herself she sprained her ankle. Dr. Herbert E. Zepp, a physician, who attended Mrs. Webb for her injuries, was called to describe them to the jury. His testimony in chief was confined to a description of her physical condition as he found it upon an examination made immediately after the accident, and its consequences. On his cross-examination he was asked this question, “* * * How, Doctor, a sprained ankle, — is that sprained ankle the result of this injury, too ?” which the Court refused to allow, and that ruling is the subject of the first exception.

The question was obviously improper and we find no error in this ruling. There is nothing in the record to indicate, that the witness had ever heard of Mrs. Webb’s sprained ankle, he certainly had given no testimony concerning it, nor was there anything in the record to connect it in any way with the injuries resulting from the accident. The general rule in American courts, and one which has been adopted in this state, is that a witness, other than a party, may only be cross-examined upon matters and facts upon which he has been examined in chief, and upon such matters as are likely (o affect his credibility, test his memory or knowledge, show his relations to the parties or the cause, his bias, or the like. ⁸¹ There are qualifications and exceptions to this rule, and its application in particular cases must largely, as a matter of practical expediency, be committed to the sound judicial discretion of the trial court, and its ruling in respect thereto, in the absence of anything to show an abuse of that discretion, will not be disturbed. Murphy v. Stubblefield, 133 Md. 30 .

The second exception relates tO' the court’s ruling on the prayers. At the conclusion of the whole case the court granted two prayers for the plaintiff, the first as offered, and the third as modified. The third is the damage prayer usually •offered in cases of this character and was. in our opinion properly granted. - The substantial question raised by the appeal, however, grows out of the court’s action in granting the plaintiff’s first prayer, by which the jury were instructed that if they found from the evidence “that the plaintiff was struck by the defendant’s automobile as she was in the act of crossing Linden Avenue at the street crossing on the north side of IXorth Avenue at a time, if the jury so find, when the semaphore indicated “Go” to the plaintiff, they may find that she had the right of way over the defendant’s automobile; and if the jury further find that the accident was caused by the defendant or his agent failing to give the plaintiff the said right of way, then their verdict shall be for the plaintiff (unless they further find that the plaintiff was guilty of negligence that directly contributed to the accident).” That was not in our opinion a correct statement of the law applicable to the facts before the jury, and under the circumstances of this case the jury may well have been misled by it to the defendant’s injury. It is based upon the theory that the jury were at liberty to find from the single fact that the “semaphore indicated ‘Go’ ” to the plaintiff, that she thereby acquired a “right of way over the defendant’s automobile,” and an absolute right to proceed in the direction indicated by the signal regardless of any other fact or eircumtanee, and that is not, as we ⁸² understand it, the law of this State applicable to- the facts- and circumstances surrounding the