Smith v. Aulick

M'arbury, J., delivered the opinion of the Court. The appellant, Fran Smith, sued James Calvin Carter, the driver of an automobile in which she was a passenger, and David S. Aulick, appellee, the driver of an oncoming vehicle, for personal injuries sustained as the result of a collision between the vehicles. At the conclusion of her case the lower court directed a verdict in favor of appellee Aulick. Appellant obtained a judgment against Carter in the amount of $10,000.00.

She appealed only from the judgment entered upon the directed verdict in favor of Aulick. The single issue in the case is whether the lower court erred in finding that there was insufficient evidence produced to justify the submission of Aulick’s negligence vel non to the jury. The accident occurred on January 1, 1965, at approximately 2:00 a.m., at or near the intersection of Flower Avenue and Palmer Lane, Takoma Park, Montgomery County, Maryland. Aulick was proceeding in a westerly direction on Flower Avenue.

The co-defendant below, James Calvin Carter, with the appellant as a right front seat passenger, was operating his motor vehicle in an easterly direction on Flower Avenue and intended to turn right into Palmer Lane. At the place of the collision. Flower Avenue is just wide enough for two vehicles to pass each other. At the trial, Aulick’s testimony indicated that Carter’s automobile was on the wrong side of the narrow road at the time of the impact.

Carter did not testify personally, but his deposition was introduced into evidence by the appellant without ²⁷⁰ objection. In his deposition, Carter stated that the accident occurred in his lane. He further said that Aulick’s automobile was approaching at a very high rate of speed. However, he was unable to give an approximation of that speed.

At the trial appellant could not state whether Aulick’s vehicle was on the right side of the road when she first saw it since “[h]e was coming so fast I couldn’t tell you.” However, on cross-examination she confirmed that in her deposition she had stated that the appellee’s car was on its proper side of the road and that Carter was over the center line in order to make a right turn because the street was so narrow. Officer Thomas Thorowgood, who investigated the accident, testified that the point of impact was directly in the middle of the road. He also established