Shaivitz v. Etmanski

¹²⁷ Adkins, J., delivered the opinion of the Oonrt. Jacob Etmanski, the appellee, while walking at night in a westerly direction on the north side of Eastern Avenue and attempting to cross Patterson Park Avenue, was struck and injured by a truck belonging to appellants going north on Patterson Park Avenue. According to the testimony of the plaintiff, he started to cross Patterson Park Avenne, the green light being in his favor, and got to the center of that street, when an automobile, coming from the north, stopped in front of him on the crossing line with another car immediately in the rear. Witness said that, when he stopped and stood there, he had ten feet to go to get all the way across the street; that the truck came from the south and hit him; that the light was yellow after he was hit; that he had taken only two steps forward after he stopped before he was hit; that he looked to the left (south) before he started to cross the street, and did not see anything coming; that he could see south on Patterson Park Avenue two squares or more.

Other witnesses for plaintiff testified that the car which stopped in front of plaintiff stopped across the line of the crossing; that on the change of the light to green for north and south traffic the cars which caused plaintiff to stop moved, and defendant’s truck coming from the south struck plaintiff while he was still standing on the crossing. There was testimony that the truck was moving at from twenty to twenty-five miles an hour as it crossed the intersection. Testimony on behalf of defendant was that the truck had turned into Patterson Park Avenne one block south of Eastern Avenue; that at the crossing it was moving from twelve to fifteen miles an hour; that the driver saw defendant standing in or near the middle of the street and, when the truck got within ten feet of him, he took several steps back in front of the track. The testimony of the physician who attended plaintiff was that plaintiff had made considerable progress, but that the witness did not think he would be able to do any work that would put any straih on his back or pelvis; that he would have to continue the use of the back support; that in time he might do some light work. ¹²⁸ This appeal is from the judgment on a verdict in favor of the plaintiff.

The only bill of exception is to the granting of plaintiff’s first, second, and third prayers, and to the refusal of defendants’ A, third and fourth prayers. We find no reversible error. None is seriously urged except in the granting of plaintiff’s second prayer and the refusal of dfendants’ A and fourth prayers. Plaintiff’s first and third prayers are the stereotyped form of prayers in negligence cases; the first was as to the requirements for a verdict for plaintiff, and the third as to the measure of damages.

The objection raised to the third is that there was no evidence of permanent injury, but what is said above in regard to the doctor’s testimony shows that this objection is untenable. Besides, there was no special exception. Plaintiff’s second prayer is a last clear chance prayer. It is objected to this prayer that a last clear chance prayer is not applicable to the facts of this case, and that in any event the prayer does not correctly state the law as announced in United Rys.

Co. v. Sherwood Bros., 161 Md. 304 , 157 A. 280 . What we said in that case applied to the facts of that case. Of course, we did not say or imply that a defendant could run down a pedestrian, even if he were negligent, merely because he failed to extricate himself from danger when he could have done so, if there were any conditions which should have warned