State Ex Rel. State Accident Commission v. Carroll-Howard Supply Co.

²⁹⁵ Bailey, J., delivered the opinion of the Court. This is an appeal by the plaintiff from a judgment n. o. v. for costs in favor of the defendants, entered under Trial Rule 8 of the General Rules of Practice and Procedure, 1941, on motion of the defendants after the jury empaneled to try the case had been discharged for failure to agree on a verdict. At the trial each of the defendants, Carroll-Howard Supply Company, Inc., and Hayden H. Bond, moved for a directed verdict for the following reasons: because there was no evidence in the case legally sufficient to entitle the plaintiff to recover; because there was no evidence in the case legally sufficient to prove that the defendant, Bond, was guilty of any negligence which was a proximate cause of the death of William J. Hauck, husband of one of the equitable plaintiffs; and because it appeared from the uncontradicted evidence in the case that Hauck, the deceased, was guilty of negligence directly contributing to the happening of the accident complained of. Both motions were overruled at that time and the case was submitted to the jury.

Upon the failure of the jury to agree upon a verdict and its subsequent dismissal, and within the time limited by Trial Rule 8, motions for judgment n. o. v. were made by both defendants. The motions were then granted by the court and the judgment n. o. v. entered. It is from this judgment that the appeal is taken. The plaintiff contends that the judgment should be reversed because the evidence was legally sufficient to establish primary negligence on the part of the defendants and because the evidence does not establish contributory negligence by the deceased as a matter of law.

On January 7, 1943, William J. Hauck, who was employed by Wilcox & Ziegler, Inc., as the driver of a coal truck, was at the yard of the Baltimore Service Coal Company, located at the northwest corner of Maryland Avenue and Oliver Street, in Baltimore. The office of the company is on the eastern part of the lot and immediately to the west of the office are two scales upon which the loaded trucks are driven to be weighed. The ²⁹⁶ No. 1 scale, which is nearest the office, is nine feet, one inch in width. It is separated from the No. 2 scale, which is nine feet wide, by a concrete partition, which, at its northerly end, is seventeen inches wide.

There are concrete buffers twenty-one inches wide on both sides of the partition, extending from the partition to the edge of the platform of the scale. The height of the buffers is not given but the photograph offered in evidence indicates that it is about six inches. The trucks are loaded on the northern part of the lot and are then driven in a southerly direction to the scale. Hauck had driven his loaded truck on the No. 2 scale, facing in a southerly direction towards Oliver Street, and had then entered the office, leaving his helper on the truck.

Another truck was on the No. 1 scale. The truck owned by the defendant, Carroll-Howard Supply Company, Inc., and driven by the defendant, Bond, was loaded and waiting about thirty feet north of the scales, to enter the No. 1 scale as soon as it was vacant. Louis A. Hauck, a brother of the deceased, testified that he was sitting in the cab of his truck, about twenty feet behind the Bond truck, waiting to enter the No. 2 scale, when it was vacated by his brother’s truck; that his brother .came out of the office and walked north of the No. 1 scale and stood in front of the partition, or pillar separating the scales, with his right foot on a pile of soft coal which was north of the partition and extended slightly beyond the buffers; that he was standing near the entrance to the No. 1 scale at an angle of forty-five degrees, looking' up at the helper on his truck and giving him directions as to the load of coal; that, while he was standing in this position, the Bond truck, which had been stationary, moved forward at a speed of four or five miles per hour to enter the No. 1 scale; that the Bond truck gave no warning of its approach; that the cab of the truck passed his brother and that the truck then “moved more to his right. That’s when the side of his body hit my brother; the front part of his truck passed him, the cab passed him and his body ²⁹⁷ started to pass him, but as he swung more to the right he hit my brother in the back, up in his left shoulder, and throwed him underneath the truck”; and that he could not tell the exact spot of the body which hit his brother.

However, on a photograph of the truck he indicated the point of contact as the second stake on the right side of the body, some distance in front of the rear wheel. It was admitted that the front of the truck was sixty-seven and one-half inches wide and that the body was ninety-one and one-half inches wide. This would cause the right side of the body of the truck to extend twelve inches beyond the right front fender. This witness further testified that it was customary for all the truck drivers using this coal yard to stand in the position in which his brother was standing when they were giving directions to their helpers on the trucks using the No. 2 scale, and that after his brother had taken this position he never moved until he was hit by the body of the truck.

James Johnson, the helper on the Bond truck, testified that as the truck was approaching the No. 1 scale he was riding on the right front fender, with his left leg across the light and his right leg hanging by the side of the fender; that he saw Hauck standing on top of the coal pile in front of the pillar, with his back to the approaching truck; that Bond did not blow his horn; that, as he passed Hauck, “if I had leaned way over I could have touched him”; and that the truck kept going straight." When he was asked to indicate on the photograph Hauck’s position he placed him on the coal pile in front of the pillar but near the entrance to the No. 2 scale. The defendant, Bond, testified as follows: “When I came up to the scale there wasn’t anyone on the scale that I was going on. I was in low gear. I didn’t stop for anybody.

I come right up to the scale. I was driving in a straight line. There’s a little incline there when you go up on the scale. I did not change my speed or direction.

I was already in low, I didn’t have to change ²⁹⁸ my gear. I was going straight forward about four or five miles. I was at least forty or fifty feet back in the yard — back from the scale — when Mr. Hauck came out of the office and walked in front of me. I was moving towards the scale.” He further testified that Hauck walked over the little pile of coal and stopped to talk to his helper on the truck; that he stood with his back to the approaching truck and that he “was standing perfectly still when I passed him”; and that “whenT passed him the front fender was around three or four feet away from him”. - On cross-examination he admitted that he had previously stated to the police that the right front fender of his truck had cleared Hauck by “at least two feet”, and he testified that if his right front fender was within two feet of Hauck he would have had to warn him to prevent him from being hit, but that no warning was given.

On this testimony the jury was entitled to pass upon the questions of primary and contributory negligence. Both the deceased and Bond were lawfully upon the premises of the Baltimore Service Coal Company, and it was the duty of Bond while on said premises to exercise reasonable care and diligence relative to the circumstances in the operation of his' truck. Bond knew that it was the custom of the drivers to stand north of the scales and direct their helpers on the trucks which were on the scales. He saw Hauck assume such a position.

There is no evidence that Hauck knew that Bond’s truck was approaching. It was the- plain duty of Bond to use reasonable care and diligence in the operation of his truck so as to avoid injury to any person lawfully on the premises and plainly visible to him. On the testimony in this case the jury could have found that the accident happened and Hauck’s death resulted from the failure of Bond to use reasonable care and prudence in the management