Pratt v. Coleman

Anderson, J., delivered the opinion of the Court. The appellant, Herbert J. Pratt, brought suit against the appellees, llene Leslie Coleman, George A. Fuller Company, Inc., and Riggs National Bank. Originally Walker Dunlop, Inc. was a defendant but the plaintiff dismissed his claim against that defendant at the conclusion of his case in chief. The suit was brought in the Circuit Court for Montgomery County, Judge Kathryn J. Shook presiding at a jury trial.

The appellant, a pedestrian, brought suit on the basis of alleged injuries sustained as a result of an automobile accident on June 29, 1968. The appellant contended that his injuries were due to the negligent operation of a motor vehicle by the appellee Coleman and/or due to the negligence of the appellees, the Riggs National Bank and George A. Fuller Company, Inc. in the maintenance and use of the sidewalk area adjacent to the roadway where the accident occurred. Among the evidence offered by the appellant and received by the court was the testimony of the appellee Coleman and her father, Dr. Alien B. Coleman. At the conclusion of the appellant’s case, Judge Shook granted ⁷⁸ motions for directed verdicts for the three appellees.

On this appeal, the appellant raises the following contentions : (1) The trial court erred in directing verdicts in favor of the appellees on the ground that the appellant had failed to establish legally sufficient evidence of any negligence on the part of the appellees that was a proximate cause of the appellant’s injuries. (2) The trial court erred in directing verdicts in favor of the appellees on the ground that the evidence offered by the appellant demonstrated, as a matter of law, that this conduct was contributorily negligent and that it was a proximate cause of the injuries sustained by him. (3) The trial court erred in taking the consideration of the doctrine of last clear chance away from the jury. We will view the facts in the light most favorable to the appellant, the non-moving party, for in ruling on the propriety of a directed verdict in a negligence case, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn.

Mazer v. Stedding, 10 Md. App. 505, 506 . “* * * Maryland has gone almost as far as any jurisdiction we know of in holding that meager evidence of negligence is sufficient to carry a case to the jury. * * Fowler v. Smith, 240 Md. 240, 246 . In the instant case the accident occurred at approximately 12:30 p.m. on Willard Avenue, in Chevy Chase, Maryland, in front of the Willoughby Apartments, an apartment house then under construction. Willard Avenue, at the point where the accident occurred, is a four lane roadway running east and west. The appellant and a companion, Robert L. Schreiber, had crossed the road ⁷⁹ way from south to north, each taking a slightly different route and direction.

The appellant had crossed to the north curb and because of an obstruction in the form of debris and planking, on the north curb he decided not to leave the roadway at that point. He thereupon changed his direction of travel so that he proceeded in a westerly direction, out from the curb and back into the travelled portion of the roadway. Before veering back into the roadway the appellant claimed that he looked for approaching traffic but saw none. Shortly after the appellant stepped back into the travelled portion of the roadway, the accident occurred.

At no time did the appellant see Miss Coleman’s vehicle. The appellant then called as a witness, the appellee Coleman. It should be pointed out that the general rule in this State is that if one party calls an adverse party as a witness, he is bound by his adversary’s testimony, unless it is contradicted or discredited. Md. Code (1957), Art. 35, Sec. 9; Nizer v. Phelps, 252 Md. 185, 203 ; Plitt v. Greenberg, 242 Md. 359 .

The appellee Coleman was proceeding westbound on Willard Avenue at approximately twenty-five miles per hour. As she approached the Willoughby Apartments she observed the appellant reach the north curb. In the area when the appellant reached the north curb there was a mound of dirt extending from the curb into the right lane of travel. To avoid this dirt pile, Miss Coleman started to move her vehicle from the curb lane into the lane closest to the center lane of travel.

She looked into her rear view mirror for traffic approaching from the rear and then started to move into the centermost lane. The Coleman car had just started into the centermost lane when the impact occurred. At that time the car was abreast of the dirt pile and the point of contact between the appellant and the Coleman vehicle was the right side of the car, most likely the handle. The point of impact was at the dirt pile in the curb lane.

The mound of dirt extended approximately six feet into the curb lane. Immediately following the impact, the appellant was observed lying four to five feet out from the curb. ⁸⁰ I and II It is not necessary to consider the