Sheer v. Rathje

Urner, J., delivered the opinion of the Court. As the plaintiff, a woman seventy-three years of age, was walking at night eastwardly across Mt. Royal Avenue, north of its intersection with Mosher Street, in Baltimore City, she was struck by a northbound automobile. The driver of the car was the husband of its owner, who was seated beside him at the time of the accident, and both were joined as defendants in this suit by the injured pedestrian.

From a judgment in her favor they have appealed. The principal exception pressed on appeal refers to the refusal of the trial court to withdraw the case from the jury. It is argued that there was no legally sufficient evidence of negligence in the operation of the car occupied by the defendants, and that negligence on the part of the plaintiff was conclusively proved. Mt.

Royal Avenue is a wide thoroughfare divided by a central park area. The vehicular way to the east of the center is used by northbound traffic, while the western section is devoted to travel in a southerly direction. It was testified by the plaintiff that she was crossing the avenue from west to east on Mosher Street, and waited on the cement footway at the end of the central park area for traffic to pass, and then started across the eastern drive way when the nearest approaching cars were beyond the next street intersection to the south, and that she was within two steps of the opposite curb and “right near the comer,” when she was struck by an automobile and thrown to the ground. One of the plaintiff’s witnesses testified that, just before the accident, he was waiting in his car at the intersection of Mt.

Royal Avenue and Mosher Street for an opportunity to turn to his left northwardly on the avenue; that he did not ⁸² see any pedestrians to his left, as he was looking to his right for the passage of cars from the south. He said: “The first I knew of anything happening was when I heard screeching of brakes. I turned and saw somebody going down and the machine stopped. I then turned my machine into Mt.

Royal Avenue and pulled up in front of the curb in front of 1505, which is the third house north of Mosher Street, and went back to see what had happened. I had not seen the contact between the person struck and the automobile striking her, and it is rather difficult to say where exactly in reference to the corner I saw the plaintiff falling, a thing like that happens so fast, but when we picked her up she was in front of the first house on Mit. Royal Avenue, that is in front of 1501, about three feet from the east curb of Mt. Royal Avenue and a little past the pedestrians’ crossing.

No. 1501 is on the north side of the intersection on the northeast corner. * * * When I got there Mrs. Rathje, the plaintiff, was sitting on the ground and Mr. and Mrs. Sheer, the defendants, were out of their machine and trying to lift her up, and were saying something about going to the hospital * * * and I took her in Mr. Sheer’s machine to the Woman’s Hospital for first aid treatment.” The witness said that, when he returned to Mt. Royal Avenue for his car, about an hour after the accident: “I went to the corner to see if there were any signs of anything on the street. * * * I could see where Mrs. Rathje had gone down, and also the skid marks of the machine, and the skid marks stopped in the pedestrians’ crossing-. Now, whether they were the front wheels or the rear wheels I do not know. * * * There was a lot of blood where Mrs. Sheer was. * * * Q. With reference to the blood where were the skid marks? A. South and to the west. * * * Q. Will you tell us how you identified them as the skid marks of the Sheer car?

A. Well, as far as actual identification, that is a pretty hard thing to do, as far as skid marks are concerned; but just by the logic of the thing, where the mark was and where Mrs. Rathje was when she was picked up.” ⁸³ An objection to the quoted testimony as to the skid marks was overruled. As tending to prove that the accident occurred in the pedestrians’ crossing, the testimony excepted to was in conflict with that of the defendants and their witnesses to the effect that the plaintiff was struck while attempting to cross the street some distance north of the place where pedestrians have the right of way. There was no error in the ruling on 'that exception. From the description by the witness of the skid marks in relation to the positions, at the time of the accident, in which he had observed the plaintiff and the automobile of the defendants by which she was injured, it could be reasonably' inferred that the marks in the pedestrian crossing were made by their car, and that its contact with the plaintiff occurred in that part of