State Ex Rel. Shipley v. Lupton

Adkins, J., delivered the opinion of the Court. This is a suit -in the name of the State, for the use of the widow and infant children of B. Thomas Shipley, who died ¹⁸⁵ from injuries received in a collision between the automobile of I. Newton Sbipley, the brother of B. Thomas. Shipley, in which the deceased was riding1, and that of Elmer H. Lupton, one of the appellees, of which Lupton was the driver and the1 only occupant. The collision occurred at the intersection of Frederick Eoad and Forest Drive in Baltimore County at about 1.30 P. M. on January 7th, 1931.

Both cars were being driven on the Frederick Eoad, the Shipley car towards the west and the Lupton car towards the east. The view of the Frederick Eoad in either direction from the intersection was clear and unobstructed for at least a quarter of a mile, and the view of the respective drivers as they approached the intersection was unobstructed. The collision occurred as the Shipley car was turned to the left around the right of the center of the intersection in going from the Frederick Eoad into Forest Drive. According to the testimony of I. Newton Shipley, he was driving the car and his brother was a passenger.

Just before he approached the intersection, he had slowed down and held out his hand to warn any one from the rear that might be coming up to keep him from passing as witness started to turn into Forest Drive. “I was looking west, the nearest approaching car I could see was over three or four hundred feet. Thinking there was nothing to prevent me from turning, I continued on and made the turn into Forest Drive. As I entered Forest Drive the thing that attracted me to the car was the car swerving off Frederick Avenue to. my right and crashed into my car. * * * I put out my hand to make this turn probably ten (10) feet or more before I struck the intersection of the street. As I was holding my hand up to warn anyone there and looking west and seeing no one in the way I continued up to make the circle. * * * As I started to make the circle over across the intersection where the other car would come down, it would be probably two hundred feet away. * * * When I was twenty-five (25) or fifty (50) feet away from F’orest Drive or thereabouts, I could not have been going more than twelve miles an hour.

I was slowing down then. * * * When I saw Mr. Lupton’s ¹⁸⁶ car swerving off Frederick Road, I was right in the circle and, to make that turn, you could not have gone over eight miles an hour. * * * My brother was sitting on the right-hand side of the car and I drove on the left-hand side. * * * As a result of this impact, it swerved me clear around and drove me down the street — Forest Drive. It swerved the front around to the rear. When my car stopped after the accident, I was forty (40) or forty-five (45) feet from the macadam part of Frederick Road. * * * When Mr. Rup-ton’s car swerved off tjie road, it could not have been going less than thirty-five (35) miles an hour, because it was like a bullet or cannon ball. It was going at a great rate of speed because in the time it came on there was like a flash.

I could not tell how fast. * * * I was off the Frederick Road at the time I was hit. * * * I said I was off the macadam of Frederick Avenue.” It appears from the record that twenty-five miles an hour was the speed limit at that point. The defendants’ version of the occurrence is given by Elmer H. Rupton. He testified, so far as is necessary to recite for the purposes of this appeal, as follows: “I was driving a Marmon roadster and turned east on Frederick Road toward Catonsville and Baltimore, and driving at a moderate rate of speed. I was driving properly on the road, that is right of the center of Frederick Road and I continued towards Catonsville until I reached a place where Park Drive and Forest Drive began and run south from the Frederick Road.

Then a car that I had noticed going in an opposite direction from what I was, going towards Ellicott City followed by a Ford truck, without any notice, without any warning that I saw in any way, immediately turned in front of me so close that it was absolutely impossible, absolutely impossible, for me to avoid striking this man. I did everything that I could to avoid the- accident. I put on my foot brake, I jerked my emergency brake and at the same time swerved my car to the right. I hit this car, which practically stopped my car.

I don’t believe at the time of the impact my car could have been moving two miles an hour. (Witness explained on cross-examination that he meant after the impact.) I pushed this ¹⁸⁷ fellow out of the way and my car at the time in which I hit this other car continued off of the Frederick Road at about thirty per cent, angle and stopped very easily against the curb and inside of a telephone pole. * * * During the impact I had my hands very firmly, naturally, on my steering wheel. My steering wheel broke and I lost control of my car and it continued on without any guidance from me.” Witness testified that, at the time Shipley’s car started to turn, the front of witness’ car was ten feet in the entrance of the intersection. “Between the time Mr. Shipley’s car started to turn and the collision was within a split second, a second anyhow. The collision took place with a greater portion of my car on Frederick Road, the bed of Frederick Road.” He further testified: “Coming down Frederick Road that afternoon close to Forest Drive, I was going at a very moderate rate of speed; * * * I had been driving a. car fifteen or sixteen years.

I was going less than twenty-five miles an hour, I am positive. It was a clear day. Probably when I first observed the Buick car I was probably four or five hundred yards away. * * * At that time I couldn’t tell the exact location of this Buick machine. There was a couple cars going in my direction and this car and the Ford truck was on the other side. * * * I don’t remember the Ford truck fifteen hundred feet away, I don’t believe.

There was no occasion for me to pick out cars. The only thing I do know is that there were cars on that side and as I come closer to Forest Drive I saw this man long before he turned, forty or fifty feet before he turned. * * * That means that he was forty or fifty feet east of Forest Drive. * * * I was just about the same distance west of Forest Drive as this man was east of Forest Drive. I imagine he was traveling about the same speed as I was making. * * * I didn’t see him put his hand out. Q. Why didn’t you see that hand ?

A I did not see it. Q. You were looking for it? A. I was looking for the car and it was so close to me I never expected the car to make a turn and dash in front of me like that fellow did. I expected him to continue to' Ellioott- City.

Q. When ¹⁸⁸ he started to- make his turn how far were you away from him? A. -When he started to' make his turn he was very close to me, practically on top of me.” These were the only witnesses of the actual collision, except the man who was killed. Shipley’s wife was on the back seat of his car, but she was busy with her baby and did not see it. Other witnesses testified as to the positions of the cars immediately after the crash, and their condition, and as to the injuries sustained by the occupants of the Shipley car.

At the conclusion of plaintiffs’ case, the court granted a demurrer prayer offered by the Bartgis Bros. Company, one of the defendants, whereupon plaintiffs asked leave to enter a non pros, as to this defendant. On objection of counsel that the court had already ruled on the prayers, and that it was too late to' take a non pros., the court sustained the objection and directed the verdict to be taken, which was done, plaintiffs noting an exception, and judgment was entered on the verdict; and the case proceeded as to the other defendant. Several witnesses for defendant testified that plaintiffs’ decedent was found sitting behind the steering wheel, with his hands on the wheel as if he had been driving the car.

At the conclusion of the trial the jury found a verdict for the remaining defendant, on which judgment was entered. We will first dispose of the exception to the ruling of the trial court refusing to permit plaintiffs to take a non pros. In our opinion, this ruling was erroneous. Prior to the Act of 1914, ch. 432, it was necessary to- call the plaintiff before taking the verdict of a jury and he co-uld exercise his right to' take a non pros, by refusing to answer.

By the Act of 1914, ch. 432, re-enacted by the Act of 1920, ch. 661, now Code, art. 15, sec. 183, it is provided that “it shall not be necessary to call the plaintiff before the verdict is rendered; nor shall the plaintiff be entitled to- dismiss his suit or submit to a voluntary judgment of non pros, after argument upon the facts has begun in cases tried before a jury or before a court sitting as a jury; but the plaintiff shall have the same right to dismiss such case or submit to a voluntary judgment ¹⁸⁹ of non pros, thereon, np to the time when such argument on the facts has begun, as before the enactment of this section except as hereinafter provided.” We do not feel at liberty to construe this act to mean something that it does not say. It is in derogation of the common law, and must be construed strictly. If the Legislature had meant that the right should be lost after the court had passed upon the prayers, it would have been easy to so provide. It frequently happens that, after the court has passed upon the prayers., the case is practically ended, although it may not be actually withdrawn from the jury.

We have no. way of knowing that the Legislature intended that in one case the right to a non pros. should be preserved and in the other denied. The decisions in other jurisdictions are conflicting in construing somewhat similar statutes. 9 R. C. L., p. 195. The precise question has not heretofore been decided in this state. We think, however, the case of Easter v. Overlea Land Co., 128 Md. 99 , 97 A. 146 , tends to support the conclusion we have reached.

The judgment in favor of the defendant the Bartgis^Bros. Company will be reversed and the case remanded, so that a judgment of non pros, may be entered as to that defendant. It is